THE STRAIGHT BASELINES IN INTERNATIONAL MARITIME LAW: IMPACT ON CONTINENTAL SHELF AND EXCLUSIVE ECONOMIC ZONE
Thesis Submitted in Candidature of the Degree of Doctor of Philosophy in National Defence University Islamabad
Submitted By Syed Mahmood Akhter Hussain Gardezi Reg. No. NDU-PCS/PhD/F.09/011
2016
Supervisor Dr. Ishtiaq Ahmad Choudhary
DEPARTMENT OF PEACE & CONFLICT STUDIES FACULTY OF CONTEMPORARY STUDIES NATIONAL DEFENCE UNIVERSITY, ISLAMABAD PAKISTAN CERTIFICATE OF COMPLETION
We hereby recommend that thesis submitted by Syed Mahmood Akhter Hussain Gardezi titled ―The Straight Baselines in International Maritime Law: Impact on Continental Shelf and Exclusive Economic Zone‖ be accepted in partial fulfilment of the requirement for the degree of PhD in the Discipline of Peace and Conflict Studies.
Prof. Dr. Ishatiaq Ahmad Choudhary (Supervisor)
______(External Examiner)
Countersigned By
______(Controller of Examinations) (Head of the Department)
i SCHOLAR‟S DECLARATION
I hereby declare that thesis submitted by me titled ―The Straight Baselines in International Maritime Law: Impact on Continental Shelf and Exclusive Economic Zone‖ is based on my own original research work and has not been submitted to any other institution for any other degree.
Syed Mahmood Akhter Hussain Gardezi ____ November, 2016 Phd Scholar
ii ACKNOWLEDGEMENTS
I thank Almighty with whose Help, Grace and Guidance I could accomplish my study despite my extremely scheduled commitments.
I offer my sincerest gratitude to Professor Dr. Ishtiaq Ahmad Choudhary, my supervisor, whom I owe special thanks. He has been a great source of guidance and inspiration.
Professor Dr. Pervaiz Iqbal Cheema, my co-supervisor, for valuable input during the research. The PCS staff of National Defence University for their support during my work.
Mr M Naveed Iqbal, my assistant, who has been a source of great help in my computer work whose contribution will remain unforgettable.
I extend my heartiest gratitude to Dr. Muhammad Ihsan Qadir for his valuable contribution and help during the entire research project.
I am extremely grateful to Alumni of International Maritime Law Institute, Malta, National Institute of Oceanography (Pakistan) and all the distinguished scholars for their cooperation and help.
My elder brother and sisters deserve special appreciation for perennial guidance for the pursuit of my education.
Finally, I have many reasons to thank my wife, son Anique, Ali and Hassan who sacrificed at lot many occasions due to my commitment with this research project. Without family‘s moral support and patience, this work could have only been a dream.
All errors, omission and inadequacies in this research project are attributable to the author. The views and comments are my own and do not reflect National Defence University position or represent Pakistan policy.
iii
Dedicated to my late father who being educationist was well aware of the power of knowledge and my mother (May she live long) a great source of inspiration.
iv TABLE OF CONTENTS
CERTIFICATE OF COMPLETION ...... I SCHOLAR‟S DECLARATION ...... II ACKNOWLEDGEMENTS ...... III TABLE OF CONTENTS ...... V LIST OF ABBREVIATIONS ...... IX LIST OF PRINCIPAL CONVENTIONS AND INSTRUMENTS ...... XII LIST OF FIGURES ...... XIV LIST OF GRAPHS ...... XV LIST OF TABLES ...... XVI LIST OF CHARTS ...... XVII ABSTRACT ...... XVIII CHAPTER 1 ...... 1 INTRODUCTION ...... 1 Theoretical Framework ...... 4 Statement of Problem...... 5 Objective of Study...... 7 Scope and Significance of Study ...... 7 Research Limitations ...... 9 Hypothesis ...... 10 Research Questions ...... 10 Research Design and Methodology...... 10 Literature Review ...... 11 Outline of the Study ...... 21 CHAPTER 2 ...... 24 HISTORICAL EVOLUTION OF MARITIME LAW ...... 24 Maritime Law ...... 24 Historical Tour de Horizon of Maritime Law ...... 27 Egyptian Law ...... 30 Phoenician Law ...... 31 Rhodian Law ...... 32 Greek Law ...... 33 Chinese Law...... 33 Roman Law ...... 34 Lex Mercatoria and Lex Maritima ...... 36 Byzantine Law ...... 37 Arab and Muslim Law...... 38 Rolls of Oleron ...... 39 Statutes of Towns and Maritime Ports ...... 40 Laws of Wisby...... 40 Consolato Del Mare or Consulate of the Sea ...... 41 Guidon de la Mer ...... 41 French Laws ...... 42 Ordonnace de la Marine ...... 42 Malaccan Code ...... 43 English Law ...... 44 US Maritime Law...... 45 Glance at Maritime Claims in History ...... 46 Twentieth Century Developments in Maritime Law...... 49 Post Second World War Developments and Emergence of Law of the Sea...... 51 Conclusion...... 54
v CHAPTER 3 ...... 55 BASELINES ...... 55 Baseline - Defined...... 55 Normal Baselines...... 56 Straight Baselines...... 61 Evaluation of Anglo-Norwegian Fisheries Case ...... 68 Methodology of Employing Straight Baselines under UNCLOS ...... 75 Conclusion...... 78 CHAPTER 4 ...... 80 ANALYTICAL EVALUATION OF STRAIGHT BASELINE DOCTRINE - FACTORS BEHIND EXCESSIVE CLAIMS ...... 80 Analytical Evaluation of Straight Baseline Doctrine ...... 80 How Can Uniformity be Reached on Straight Baseline Principles in Article 7 of UNCLOS? .....87 Factors Behind Resorting Excessive Straight Baseline Claims ...... 91 Geographical ...... 92 Economic ...... 94 Living Resources...... 94 Non Living Resources ...... 96 Strategic...... 97 Political...... 101 Psychological ...... 103 Conclusion...... 105 CHAPTER 5 ...... 107 APPROACHES TO INTERPRETATION OF UNCLOS ...... 107 Interpretation of Treaties-Approach in General...... 107 Interpretation of UNCLOS ...... 109 ‗Good Faith‘ Principle...... 112 ‗Ordinary Meaning‘ Principle ...... 113 Object and Purpose ...... 116 Additional Means ...... 117 Supplementary Means ...... 118 Conclusion...... 122 CHAPTER 6 ...... 123 DEEPLY INDENTED AND CUT INTO COASTS...... 123 Localities ...... 123 Coastline...... 125 Deeply Indented...... 128 Ordinary Meaning ...... 129 Object and Purpose ...... 130 Travaux Preparatoires ...... 131 Subsequent State Practice ...... 132 Cut Into...... 133 Ordinary Meanings ...... 134 Object and Purpose ...... 136 Travaux Preparatoires ...... 137 Subsequent State Practice ...... 139 Analytical Evaluation of ―Deeply Indented and Cut Into‖ Coasts...... 140 Conclusion ...... 144 CHAPTER 7 ...... 146 ISLANDS AND ROCKS ...... 146 Islands...... 146 Ordinary Meanings ...... 147 State Practice...... 148 Travaux Preparatoires ...... 149
vi Analytical Evaluation of Islands ...... 149 Rocks ...... 152 Artificial Islands ...... 154 Analytical Evaluation of Artificial Islands...... 158 Low-Tide Elevations...... 160 Analytical Evaluation of Islands and Rocks ...... 164 Conclusion ...... 166 CHAPTER 8 ...... 167 FRINGE OF ISLANDS AND IMMEDIATE VICINITY ...... 167 Fringe of Islands ...... 167 Ordinary Meanings ...... 169 Object and Purpose ...... 171 Travaux Preparatoires ...... 173 States Practice ...... 175 Analytical Evaluation of Fringe of Islands ...... 177 Immediate Vicinity...... 181 Ordinary Meanings ...... 181 Object and Purpose ...... 182 Travaux Preparatoires ...... 183 States Practice ...... 183 Analytical Evaluation of Immediate Vicinity ...... 184 Conclusion ...... 186 CHAPTER 9 ...... 188 MISCELLANEOUS ISSUES RELATING TO STRAIGHT BASELINES..... 188 Appropriate Base-points ...... 188 Length of Straight Baseline Segment Criterion...... 191 „General Direction of the Coast‟ Criterion ...... 196 Close Link age of Water with the Land Domain ...... 199 Publicity of Charts ...... 201 Flexible Versus Rigid Criteria for Straight Baselines...... 204 Does State Practice Acquire Customary Law on Article 7 of UNCLOS? ...... 206 CHAPTER 10 ...... 212 IMPACT OF STRAIGHT BASELINES ON CONTINENTAL SHELF ...... 212 Impact of Straight Baselines on Maritime Zones ...... 213 Internal Waters...... 214 Territorial Sea...... 216 Contiguous Zone...... 222 High Seas ...... 225 Impact of Straight Baselines on Continental Shelf ...... 229 Legal Status of Continental Shelf ...... 236 Navigation ...... 238 Non-living Resources and Living Organisms ...... 238 Military Uses...... 239 Marine Scientific Research...... 241 Laying Submarine Cables and Pipelines ...... 243 EEZ ...... 245 Conclusion ...... 245 CHAPTER 11 ...... 247 IMPACT OF STRAIGHT BASELINES ON ...... 247 EXCLUSIVE ECONOMIC ZONE ...... 247 Genesis of EEZ...... 247 Legal Status of EEZ ...... 248 Navigation ...... 251 Living and Non-Living Resources ...... 254
vii Marine Scientific Research...... 257 Military Activities ...... 259 Laying of Submarine Cables and Pipelines ...... 267 Law Enforcement ...... 271 Inclusive Versus Exclusive Interests...... 273 Conclusion ...... 275 CHAPTER 12 ...... 277 CONCLUSION / RECOMMENDATIONS ...... 277 BIBLIOGRAPHY ...... 288
viii LIST OF ABBREVIATIONS
ADIZ Air Defence Identification Zones
AIS Artificial Islands and Structures
AJIL American Journal of International Law
B.C. Before Christ
B.C.E Before Common Era
CBM Confidence Building Measures
CCAMLR Commission for the Conservation of Antarctic Marine Living Resources
CLCS Commission on the Limits of Continental Shelf
CSC Convention on the Continental Shelf (1958)
DOALOS Department for Ocean Affairs and the Law of the Sea (UN)
EEZ Exclusive Economic Zone
FAO Food and Agriculture Organization
FON Freedom of Navigation
GPS Global Positioning System
HAT Highest Astronomical Tide
HSC Convention on the High Seas (1958)
IACHR Inter-American Court of Human Rights
IAEA International Atomic Energy Agency
ICJ International Court of Justice
IHB International Hydrographic Bureau Organisation
ILA International Law Association
ILC International Law Commission
ILO International Labour Organization
ix IMO International Maritime Organization
IPCC Inter-governmental Panel on Climate Change
ISA International Seabed Authority
ITLOS International Tribunal for the Law of the Sea
IUCN International Union for Conservation of Nature
LAT Lowest Astronomical Tide
LNTS League of Nations Treaty Series
LOS Law of the Sea
LOSC Law of the Sea Convention (UNCLOS)
LTE Low-tide Elevations
MSR Marine Scientific Research
NM Nautical Mile
OECD Organization for Economic Co-operation and Development
PCIJ Permanent Court of International Justice
RIAA Reports of International Arbitral Awards
SLOCs Sea-lines of Communication
SPLOS State Parties to Law of the Sea Convention
TSC Geneva Convention on the Territorial Sea and the Contiguous Zone
UN United Nations
UNCED United Nations Conference on Environment and Development
UNCLOS I First United Nations Conference on the Law of the Sea
UNCLOS II Second United Nations Conference on the Law of the Sea
UNCLOS III Third United Nations Conference on the Law of the Sea
UNCLOS United Nations Convention on Law of the Sea, 1982
UNCTAD United Nations Conference on Trade and Development
x UNEP United Nations Environment Programme
UNESCO United Nations Educational, Scientific and Cultural Organization
UUV Underwater Vehicles
VCLT Vienna Convention on the Law of Treaties
WTO World Trade Organization
xi LIST OF PRINCIPAL CONVENTIONS AND INSTRUMENTS
1789 Constitution of the United States.
1794 United States Neutrality Act.
1884 Convention for the Protection of Submarine Telegraph Cables.
1893 Harter Act (US).
1907 The Hague Regulations-IV.
1945 Statute of International Court of Justice.
1945 The Charter of the United Nations.
1948 IMO Convention.
1958 Convention on Fishing and the Conservation of Living Resources of the High
Seas.
1958 Convention on the Continental Shelf.
1958 Convention on the High Seas.
1958 Convention on the Territorial Sea and Contiguous Zone.
1958 Official Record of United Nations Conference on the Law of the Sea, Vols. I- VII, (Geneva, 24 February — 27 April 1958).
1969 Convention on the Law of Treaties.
1969 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties.
1969, Official Record UN Conference on the Law of Treaties, Vienna.
1972 UNESCO Convention for the Protection of the World Cultural and Natural
Heritage.
1973/78 Convention on the Prevention of Pollution from Ships.
1974 Convention on Safety of Life at Sea.
xii 1980 Convention on the Conservation of Antarctic Marine Living Resources.
1982 Agreement concerning interim arrangements relating to Polymetallic Nodules of the Deep Seabed.
1982 United Nations Convention on the Law of the Sea.
1992 Framework Convention on Climate Change.
1996 Protocol to the 1972 Convention on the Prevention of the Dumping of Wastes and Other Matters.
205 LNTS 121.
Ronald Reagan, ―Statement on United States Ocean Policy,‖ Presidential Document, March 10, 1983.
Scientific and Technical Guidelines of CLCS.
US Presidential Proclamation No. 2667, Policy of the United States With Respect to the Natural Resources of the Subsoil of the Sea Bed and the Continental Shelf of 28 September 1945.
xiii LIST OF FIGURES
Figures Title Page Figure-1 Flow Chart-Maritime Law 27 Figure-2 Normal Baselines 61 Figure-3 Straight Baseline Situations 62 Figure-4 Norwegian Coastal Configurations 68 Figure-5 Methodology for Employment of Straight Baselines 77 Figure-6 Flexibility in Options of Constructing Straight Baselines 85 Figure-7 Hypothetical 3NM Island with its Maritime Zones 154 Figure-8 Various Insular Features 161 Figure-9 General Direction of Coast 199 Figure-10 Maritime Zones under UNCLOS 214 Figure-11 Sea Cycle of Freedoms and Jurisdictions of States 229 Figure-12 Continental Margin 233
xiv LIST OF GRAPHS
Graphs Title Page
Graph-1 Status – UNCLOS Ratifications and Straight Baselines 67
Graph-2 Survey on How to Reach Uniformity on Principle of 90 Straight Baselines
Graph-3 Segment Length of Straight Baselines of States 195
Graph-4 Territorial Sea Claims by 1960 217
Graph-5 Territorial Sea Claims by 1971 217
Graph-6 Territorial Sea Claims by 2012 217
Graph-7 Status of EEZ Claims by Coastal States 250
Graph-8 Comparison of World Marine Fish Catch From 1950-2010 255
xv LIST OF TABLES
Table Title Page
Table-1 Straight Baselines Claims by coastal States in various 83 periods
Table-2 Comparison of Maritime Area for Straight Coastline with 154 18.85 NM Length with Corresponding Circumference Radius of 3NM Island
Table-3 State Practice Regarding Innocent Passage of Warships / 201 Nuclear Powered Ships / Ships Carrying Hazardous Wastes through foreign Territorial Sea
Table-4 States Practice Regarding Military Exercises, Manoeuvres 221 Surveys, MSR, in Foreign EEZ
xvi LIST OF CHARTS
Chart Title Page
Chart-1 Chart Datum in Nautical Charts 59 Chart-2 Chart Showing Coordinates of Straight Baselines – 65 Albania
Chart-3 Chart Showing Coordinates of Straight Baselines – 66 Thailand Chart-4 Chart Showing ‗half effect‘ in case of Scilly Isles 176
xvii Abstract
The baselines being linchpin of various maritime zones (internal waters, territorial sea, contiguous zone, Exclusive Economic Zone (EEZ) and continental shelf) are crucial in shaping maritime claims. Different types of baselines, depending on coastal configurations of states, are starting point for measuring maritime zones as well as controversies between the states. Straight baseline system legitimized during 1951 Anglo-Norwegian Fisheries case between Norway and UK was only meant for irregular coastal configurations. The 1958 Convention on the Territorial Sea and Contiguous Zone (hereafter TSC) embodied the judgment into a codified article. TSC provision on straight baselines transformed almost verbatim into United Nations Convention on Law of the Sea, 1982 (hereafter UNCLOS). Vague parameters of straight baselines, devoid of precision, leave much room for liberal interpretations and flexible application. Vagueness of straight baseline terms is the main cause for excessive lines having enormous impacts on various sea regimes, brewing conflicts on international maritime arena. The means of interpretation for treaty terms like ordinary meaning; object and purpose, preparatory works and state practice are unhelpful due to compromising nature of UNCLOS and scarcity of its official record. Excessive baseline claims kindle varying degree of conflicts on regimes of sea. The study addresses; whether vagueness leads to excessive straight baseline claims. Do excessive straight baselines affect the regimes of various maritime zones? How can vagueness and inadequacies prevailing in straight baselines provision be addressed in interpretation and application? The great impact of unfounded straight baselines on EEZ and Continental shelf because of interfacing of these zones with international community rights has been investigated. Different factors behind employing excessive straight baselines by the coastal states leading to controversies and instability in the oceans have been discussed. Vagueness undoubtedly exists in terms and conditions on straight baselines with divergent state practice. The study concludes that terms and phrases in Article 7 of UNCLOS are vague, unclear, non- objective and imprecise. To avoid isolated individual or regional state practices, an international pragmatic approach is needed for uniformity of straight baseline principles. A structured oceanic legal order on the pattern of Commission on the Limits of Continental Shelf (CLCS) with a watchdog capacity is need of day to monitor the coastal state claims based on straight baselines. UN Division of the Ocean Affairs and Law of the Sea are considered most apposite forum to patron such initiative.
xviii CHAPTER 1
INTRODUCTION
Territorial claims and conflicts on sovereignty of seas and oceans is an old issue. Division of the Atlantic Ocean as a result of conflict between Spain and Portugal legitimizing it through Papal Bulls1 is no secret.2 Nevertheless, the maritime law had a distinctive peculiarity even in the ancient times, which no other branch of law can claim. The great King Antoninus while asserting lordship of the world admitted that only ‗law‘ could be the lord of the sea3 due to its unique intricacies. International maritime law is circumambulatory around two opposing themes; the appropriation of the expanse of sea by coastal state and liberating it for free use by all states. Precisely it is a clash between exclusive and inclusive interests of the states. It is important to identify a yardstick to measure the spatial extents of claims in the sea. The point or line used for the purpose is called baseline.
The establishment of United Nations seemed auspicious for codification of law of the sea in general and straight baselines in particular. Various bodies in the 1920s essayed their own codes and reached a surprising degree of unanimity. Codified law on straight baselines remained on the agenda of International Law Commission (hereafter ILC) during 1949 to 1956 law of the sea review.4 Legally Anglo- Norwegian Fisheries case5 (hereinafter Anglo-Norwegian case) proved the driving force behind the formal introduction of straight baseline system for irregular coastal configurations. The issue of straight baselines cropped up at international plane due to challenging of Royal decree of Norway by United Kingdom in the International
1 A formal proclamation issued by the pope (usually written in antiquated characters and sealed with a leaden bulla). Source: http://www.thefreedictionary.com/papal+bull (accessed on 3 March 2013). 2 Callum M. Roberts, The Unnatural History of the Sea, (Washington / Covelo/ London: Island Press, 2007), 59. 3 William Welwod, An Abridgement of all Sea-Lawes, (London: Humfrey Lownes, 1613), 1. Hereinafter “Welwod, An Abridgement, (1613)”. Also in R.P. Anand, Origin and Development of the Law of the Sea, (The Hague/Boston/London: Martinus Nijhoff Publishers, 1982), 11. Hereinafter Anand, Origin and Development of LOS, (1982). 4 ILA, “Committee on Baselines under the International Law of the Sea”, Washington Conference Report (2014), Para 15. Hereinafter “ILA, Committee on Baselines, (2014)”. 5 Anglo-Norwegian Fisheries Case, ICJ Reports 1951, p. 116. Hereinafter “Anglo-Norwegian case”
1 Court of Justice (hereafter ICJ). UK contended that straight baseline choice by Norway was against international law. The ICJ decided in favour of Norway. The judgment brought a revolution in the baseline concept and to the traditional ocean uses. The intention of court was clear that this system of baselines could be utilized on complex and irregular coasts. The doctrine of straight baselines appeared as a treaty provision for the first time in TSC.
Nine years of brainstorming by delegates from nook and corner of the world gifted the world with a constitution for the oceans6 in the form of UNCLOS. TSC provisions on straight baselines were incorporated in UNCLOS almost verbatim. Baselines are the foundation upon which the whole edifice of the regime of sea rests. These lines are the starting point for the measurement of all maritime zones of the sea to establish rights and obligations of the states. The law prescribes various kinds of baselines; normal baselines,7 closing lines,8 straight baselines9 and archipelagic lines.10 The rules are different for normal baselines applicable to regular contours of the coasts drawn from low-water artificial line and straight baselines employable to irregular and complex geographical situations. Since the study is focused on straight baselines, the emphasis would be placed on this category of artificial lines. As a rule of generality the default baseline is the normal baselines whereas straight baselines are allowed as an exception to the normal coastal conditions. The straight baseline method became most popular and controversial too due to obvious advantageous it provides to the coastal states pushing their maritime boundaries seaward.
The ambiguities and vagueness which took their birth from the ICJ verdict subsisted in TSC and UNCLOS as both the conventions were inspired by this judgment. The interstates‘ tug of war has continued and present state practice is true reflection of
6 Remarks by Tommy T.B. Koh of Singapore, President of the UNCLOS-III, New York, 1982, p. xxiii, available at www.un.org/depts/los/convention_agreements/texts/koh_english.pdf (accessed on 6 July 2013). 7 Measured from the low-water line along the coast. 8 UNCLOS, Article 10(4) & Article 50. 9 Can be employed only in irregular specified geographical situations in the spirit of Article 7 of UNCLOS. 10 UNCLOS, Article 47(1).
2 the gulf which prevailed during negotiation at third UN Conference on law of the Sea (hereafter UNCLOS-III). The unclear criteria and imprecise parameters for employing straight baselines resulted into flexible interpretation by most of the coastal states to grasp more expanse of water with extended jurisdictions. Contrarily some states resorted to rigid interpretation for more freedoms in the sea leading to objections and controversies. Arguably flexible view of stipulations in UNCLOS and non-availability of guideposts have given rise to proliferation of excessive straight baseline claims. The state practice is clearly divergent and devoid of any opinio juris (an opinion of law) or customary law.
Article 7 of UNCLOS on straight baselines enumerates a number of coastal configurations that can attract the allowance for adopting this system of baselines. The criteria cater the coasts that are ‗deeply indented and cut into‘, or bear ‗fringe of islands‘ in the immediate vicinity. The third criterion pertains specifically to unstable coasts due to deltaic geographical configurations that are very rare like Bangladesh. Bangladesh is the architect of proposal for drawing straight baselines on depth criterion due to uniqueness of her coastal conditions. On qualification of one of the basic criteria, UNCLOS provision ordains further sub-criteria on employing straight baselines like; joining of lines from appropriate points on land except in case of unstable coasts, non-departure of such lines from general coastal direction, sufficient linkage of sea area lying within lines with land domain and non- application of straight baselines from low-tide elevations (hereafter LTE) not housing lighthouses permanently above sea level.
The straight baselines as a system has acquired the status of customary international law, however, the criteria enunciated for application of straight baselines is vague and imprecise for uniformity. This is evident from the fact that UK, the arduous objector to Norwegian straight baselines has herself benefitted for this allowance and used this system on her coast. That is why straight baseline as a system per se is not reason of contention but the effects it makes on various maritime zone regimes of sea and its associated uses. The political dynamics of the globe have changed post-cold war which was not envisaged during the negotiations in the 1970s. The evolving of
3 legal framework on straight baseline system consistent with the prevailing needs is a clamouring voice.
Theoretical Framework
The role of theory in the comprehension of international law needs no emphasis. There are number of International law theories which are competitive in nature. These theories include; Policy Science Approach, Critical Legal Studies, Natural Law and Legal Positivism.11 Dworkin postulated legal theory of Interpretivism12 on understanding the nature of international law but could not muster much support. All these theories have their own approach, framework for analysis and study of international law.
Discussion on theory would not be complete without mentioning about the international law sources. These sources as per Article 38(1) of International Court of Justice Statute (hereafter ICJ Statute) are categorised as; conventions; customs; recognised general principles of law; judicial decisions or publicist‘s work of fame wherein treaties have been enumerated at the top. Nonetheless, two main rival theories; law of nature and legal positivism are termed the basis of international law.
The jurists adhering to the law of nature theory perceive that international law is part and parcel of this theory. The jurist Starke is great exponent of this view.13 Earliest proponents of this theory connected the law of nature with religion and treated it as divine law. The 16th and 17th century jurists, supporting law of nature particularly Hugo Grotius, secularised it.14 The theory received a lot of criticism.
Contrary to law of nature theory, legal positivists theory acknowledges that only a law legislated by some authority is binding. The positivists consider treaties and
11 Alan E. Boyle and C. M. Chinkin, The Making of International Law, (New York: Oxford University Press, 2007), 10-19. Also in Steven R. Ratner and Anne-Marine Slaughter, Appraising the Methods of International Law: A Prospectus for Readers, “Symposium: Method of International Law”, 93 Am. J. Int’l L. 291 at 291-423. 12 Ronald Sworkin, Taking Rights Seriously, (USA: Harvard University Press, 1977), vii. 13 J. G. Starke, Introduction to International Law, 8th Ed., (London: Butterworth & Co., 1977), 24. 14 L. N. Tandon and S. K. Kapoor, International Law, 4th Ed., (Pakistan: Mansoor Book House, 1980), 54.
4 customs as main sources of international law.15 In 18th century, the Bynkershoek, the chief supporter of legal positivist theory wrote several general treatises but particularly concentrated on state practice.16 Legal positivists base their theory on actual state practice and view that international law depends on the will of the states. The German philosopher Hagel was the pioneer in propounding the will of the states‘ concept in international law.17 Another famous Italian positivist Anzilotti posits that pacta sunt servanda (Agreement must be kept), the supreme norm, is the binding force behind international law.18 The legal positivists‘ theory is not free from criticism as well.
Notwithstanding criticism, it is a reality that spirit of legal positivism is embedded in conventions or treaties. UNCLOS is a true aspiration of the will and consent of states. This research project will rely upon positivist theory of international law which buttresses states in the driving seat. The research is concerning a provision of UNCLOS ratified by the state parties and the solution is purely state-centric legal positivism. The states are at the helm of affairs as volunteers to bind themselves through conventions which are amongst the foremost international law sources. Legal positivism may not have more relevance than the issue of straight baselines where in states are corner stone for evolving uniforms rules.
Statement of Problem
The straight baseline system formalized in Anglo-Norwegian case had grown from a bud to a tree by 1958 for general acceptance through Geneva Codification. The straight baseline text in Article 4 of TSC found its way into Article 7 of UNCLOS without clarity in terms and phrases or providing any arithmetical test. The contents of convention provision comprise juridical expressions, which may be interpreted by a variety of ways. The wording of Article 7 of UNCLOS can be characterized as
15 H. Lauterpacht Ed., International Law, 8th Ed., (London: Longman Group Limited, 1967), 96. 16 Max Sorensen, Manual of Public International Law, (London: Macmillan & Co Ltd, 1965), 25-26. Hereinafter “Sorensen, Manual, (1965)” 17 J. G. Starke, Introduction to International Law, 10th Ed., (London: Butterworth & Co., 1989), 24. 18 L. N. Tandon and S. K. Kapoor, International Law, 4th Ed., (Pakistan: Mansoor Book House, 1980), 55.
5 vague, imprecise, elastic and fluid which is evident from its foremost set of conditions in its sub-article 1; deeply indented and cut into coast or presence of fringes of islands. It needs clarity as to;
How deep indentation should be to qualify ―deeply indented‖?
How many indentations; one, two or more are prerequisite?
What is required to take the coastline into the fold of ―cut into‖?
What kind of coast can be called fringed with islands to fulfil ―fringe of islands‖ criterion?
What distance is needed to determine whether these fringed islands situate in the vicinity (that too in immediate) of the coast to comply this criterion?
Whether some formula may be agreed for uniformity and whether it shall be relevant or absolute?
What activities are permitted in EEZ?
Whether military activities in the EEZ are allowed at all and what are limits of these activities?
States have fundamental disagreements over straight baseline terms and phrases. The problems associated with straight baselines are deeply rooted in the history of appropriation of sea, military dominance, power politics and poor economy of states and depletion of land resources. In the past confrontation of states had been significant on the control and denial of the sea. In the current era resources of sea have become a volatile issue and potential conflicts may erupt. Diversified interest of major maritime powers and developing states are deepening with more and more knowledge about the sea.
A large number of states have unilaterally drawn their baselines and sometimes on their own will without paying any heed towards underlying rules on baselines. The
6 disputes over delimitation of maritime boundaries provide breeding ground for illegal activities of varied nature by criminals taking advantage of less or no law enforcement at sea. Such discontentment amongst the states which are constituent units of UN may hamper the dream of international peace, tranquillity, stability and order in the world. The law on straight baseline issues require an urgent international response.
Objective of Study
The foremost objective of study is to examine vagueness in Article 7 of UNCLOS pertaining to straight baselines for arriving at uniformity of principles. In doing so, the study will;
Investigate the meaning of vague terms and phrases;
Find actual practice of states on application of straight baselines;
Ascertain the factors behind adoption of excessive straight baselines;
Analyse the impact of excessive straight baselines on the regimes of various maritime zones.
Scope and Significance of Study
Amongst all types of baselines, study would restrict to straight baselines being the primary source for interstate conflicts particularly between the neighbouring; adjacent and opposite coastal states. The issue has been examined from global perspective with no geographical limits. The limitation of maritime boundaries, heavily dependent on baselines, is quite different from demarcation of boundaries on land due to involvement of various inherent intricacies. No state can compel other state to draw the baselines as she feels appropriate as states are independent sovereign entities in international system. Unilateral drawing of excessive baselines can only be agitated at international forums to put pressure on the concerned state. The issue of excessive straight baselines is marred by unclear parameters provided in Article 7 of UNCLOS. The vested interests of states and their political expediencies
7 have compounded issue through liberal application of these fluid principles. The dissatisfaction of other states may have many ramifications on international environment which may last long. The expansive claims in the sea by coastal states through flexible interpretation of straight baseline principles and objection from some major maritime powers particularly the US have been consistent.
In case of extended continental shelf from 200NM to 350NM various other stake holders come into contest like International Sea-Bed Authority in Area19 and in principle all the states in the world whether coastal or landlocked. Up till now most of the states are happy over sheer claiming the sea areas without tilling resources which is a psychological solace. The ocean resources are gaining more importance with more awareness and knowledge about the sea. It is likely to bring more controversies on the maritime claims sphere, exercise of jurisdiction and rights amongst the states. Historically the powerful maritime states have always raised the slogan of freedom of seas for all whereas comparatively weak states have desired appropriation of the sea.20 All the stakeholders at sea; neighbouring states, major maritime nations, coastal states and flag states21 to a little less extent the landlocked and geographically disadvantaged states find straight baselines as a crucial issue.
Inter-state conflicts are perpetual cause of concern for the states on international security calculus. If disputes on sea boundaries are not addressed and settled on priority, these can disturb the international peace, an unwelcoming situation against the peace aspirations of UN charter.22 The adoption of straight baseline method commenced immediately after the famous Anglo-Norwegian case with gradual increase by 1958. However, it got geometric pursuance after the TSC reaching its zenith by the present era as is evident from Graph-1, page 67. The intellectual and
19"Area" means the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction. Source: UNCLOS, Article 1(i). 20 D.P. O’Connell, The International Law of the Sea, Vol-I (Oxford: Clarendon Press: 1982), 1. Hereinafter “O’Connell, LOS, Vol-I, (1982)” 21 Flag state refers to the country where a vessel is registered. Source: http://definitions.uslegal.com/f/flag-state/ (accessed on 24 March 2014.) 22 Article 1, Chapter-I of UN Charter.
8 legal wrestle between flexible and rigid interpretation on practical delineation of straight baselines is increasing.
Polarization of thoughts may only provide a status quo. It is the out of box thinking which can open the windows of opportunities for some agreeable criteria for the employment of straight baselines. The formula certainly lies in the intellectual brainstorming, coupled with compromises, leaving aside the hard positions on interpretations of UNCLOS provisions on straight baselines. In order to make this study meaningful, a neutral course between strict and flexible understandings of straight baselines provision has been adopted for an international contribution. It would provide useful knowledge about the factors that might lead to excessive baseline claims. The study is considered valuable being pioneer for the state parties directly involved in the conflict over straight baselines, of interest for the states indirectly concerned, for students, scholars and international organizations.
Research Limitations
The research has been carried out with many limitations. Some salient limitations included; the scarcity of scholarly debate on maritime law in Pakistani libraries. The study being pioneer in its nature in Pakistan lacked expertise in this specialized field which was a big handicap. Since surveying was not possible locally, survey was conducted through alumni of International Maritime Law Institute, Malta and various scholars while attending seminars abroad. The responses from scholars with the exception of a few had been slow, despite repeated requests and reminders, due to multifaceted reasons beyond author‘s control. The limitations were overcome by mustering support from available literature in the shape of e-books, journals and articles.
It was experienced that latest books were not available online. To combat this problem a number of essentially required books were purchased and borrowed from foreign friends/scholars. The contacts with experts abroad through emails, telephonic conversations and discussions during different seminars proved very helpful. Author‘s first-hand experience during negotiations and meetings as
9 government Representative proved very fruitful. These limitations had serious implications on meeting timeline for accomplishment of this project. The field work for acquiring some practical knowledge of the project was undertaken with the help of Pakistan National Institute of Oceanography and Hydrographers of Pakistan Navy.
Hypothesis
The parameters enunciated in UNCLOS regarding straight baselines are without substantive clarity or procedural precision. Vagueness in Article 7 of UNCLOS is the main cause of excessive straight baselines which lead to maritime conflicts.
Research Questions
The study addresses following research questions;
Whether vagueness in straight baseline conditions enshrined in Article 7 of UNCLOS leads to excessive straight baseline claims?
Do excessive straight baselines impact the regimes of various maritime zones?
How can vagueness and inadequacies prevailing in straight baseline provision be addressed in application?
Research Design and Methodology
The research is qualitative in nature with a flavour of quantitative method relying on primary and secondary sources. The exploratory research design has been adopted, as the major problem on straight baselines is the ambiguity of terms and phrases used in Article 7 of UNCLOS. Descriptive and explanatory approach has been used for data gathering techniques, comparative historical research and literature review. Surveys have been carried out to collect the opinions. Deductive approach has been resorted during the research. In fact the research is a mixed approach. Field work has been undertaken to learn basic cartographic techniques to understand and analyse the UNCLOS principles on straight baselines. Data of states on straight baselines has been gathered to learn the state practice. Deductive reasoning would be part of
10 the research. The treatises of the renowned authors in the field of international maritime law particularly relating to straight baseline problems in the sea proved to be a great academic source. Help from research papers of various think tanks and individual scholars have been taken. Discussions with maritime professionals helped in steering the course of my research in right direction. To complete the research project various instruments, inter alia, conventions particularly UNCLOS, international judicial decisions, maritime laws, writings of publicists, opinions of experts and writers have been resorted through emails and discussions.
Literature Review
The starting point for every scholarly investigation on straight baselines is ICJ Anglo-Norwegian Fisheries case of 1951 which legitimised and prescribed criteria for this system of baselines. Since then a number of cases have been adjudicated on maritime matters; North-Sea Continental Shelf (1969), Fisheries Jurisdiction (1974), Delimitation of Continental Shelf (1977), Aegean Sea Continental Shelf (1978), Continental Shelf (1982), Gulf of Maine (1984), Continental Shelf (1985), Delimitation of Maritime Boundary (1986), Delimitation of Maritime Areas (1992), Nicaragua Intervening (1992), Maritime Delimitation (1993), Maritime Delimitation between Eritrea / Yemen (2001), Maritime boundary Delimitation between Qatar / Bahrain (2001), Maritime Delimitation (2009), Land and Maritime Boundary (2010), Arbitral Award (2006), Arbitral Award (2014), Maritime Dispute between Chile / Peru (2014) and Arbitral Award on Bangladesh / India maritime delimitation (2014). Each case though between different states has contributed towards the straight baselines principles which proved very helpful during this study. Every case furthered the premise set by the Anglo-Norwegian case. The list of cases consulted during the research are at Appendix-I.
In Qatar/Bahrain case ICJ reiterated that straight baseline method was exception and might be restrictively applied. The ICJ decisions subsequent to Anglo- Norwegian case have reemphasised and restated the spirit in Anglo-Norwegian judgment.23
23 Qatar/Bahrain Case, Merits, 2001 ICJ 40.
11
The subsequent literature and codifications in the form of international conventions including UNCLOS premised on same basic conditions; prevailing of deep indentation and cut into situation or presence of fringes of islands for delineating straight lines. The case balanced the considerations of local, national, bilateral and international dimensions of straight baselines24 subsequently, apart from the work of individual scholars, the studies of international organisations and states offered a systematic contribution on straight baseline issues. Review presents themes of some main literature on straight baselines. The ambiguity on the principles terms on straight baselines has been discussed a lot but has mostly catapulted between extremes; rigid interpretation and liberal application with less or no emphasis on its solution.
The official records of earliest negotiation process for codification of straight baseline principles exhibit the wide ranging difference of opinions of scholars and state representatives. The point of view of different governments during negotiation process is considered of esteem value. Yepes, ILC member from Colombia, argued that achieving a universally applicable solution to straight baselines was not possible due to wide variation in the coastal configurations of states. He highlighted that in the fisheries case, the court too did not provide any solution because it related to a coast which had these individualistic characteristics. He stressed on some flexible formula for application appropriately to each case.25
The note verbale (diplomatic note) sent to ILC by Iceland in 1955, conveyed two aspects; ILC Article 5 (relating to straight baseline requisites) was drafted in consultation with experts on geography rather than international law. The ILC members had been nominated entirely from Western Europe who favoured
24 Anglo-Norwegian case. 25 ILC Yearbook, 1952, Vol-I.
12 limited coastal jurisdiction. Paragraph 2 of draft26 article was particularly unacceptable to Iceland and was to be deleted.27
UK reiterated on the need of discouraging local or regional considerations for drawing straight baselines rather insisted upon uniformity of rules for this system of baselines.28 US criticised ―deeply indented or cut into‖ phrase being relative and repetitive for any legal meaning. US suggestion was that ―bay‖ was the proper legal criterion of the term instead, providing precise rule in consonance with the 1951 fisheries case.29 Official records of the negotiations of states corroborate that efforts to define the phrase could not succeed due to mathematical precision necessitated.30
According to Fitzmaurice ‗deeply indented and cut into‘ criteria related to exceptional coastal situations like Norwegian and coasts of a few other countries. Contrarily countries having no exceptional coastal configurations could apply a ‗bay‘ criterion as practically there was no coast without bay.31 During Twentieth plenary meeting Japanese and Netherland delegates highlighted the vagueness of straight baselines criteria and stressed on a provision of guarantees like arbitration or compulsory jurisdiction on the pattern of Anglo-Norwegian case. Their joint proposal could not get the required two-third support for approval.32
UN study was a serious early effort comprising work of experts from a number of different countries on straight baselines. It evaluates baselines in general and straight baselines specifically from technical prism. It provides general guidelines
26 Article 5(2) of draft ILC on the Regime of Territorial Sea concerning “the limitations regarding maximum length of straight baselines, the distance of baselines from the coast and the use of drying rocks and shoals”. 27 ILC Yearbook 1955, Vol-II. 28 Ibid. 29 UN Conference on the Law of the Sea, Official Records, Vol -III: First Committee (Territorial Sea and Contiguous Zone), Summary Records of Meetings and Annexes (Geneva: 24 February – 27 April 1958). Hereinafter “UNCLOS-I, Vol-III”. 30 Ibid. ILC Yearbook 1952, Vol-I. 31 ILC Yearbook, 1955, Vol-I. 32 UN Conference on the Law of Treaties, Official Record, Vol II, Plenary Meetings, Summary Records of the Meetings and Annexes, (Twentieth Plenary Meeting held on 27 April 1958).Hereafter “UN Conference on the Law of Treaties, Official Record, Vol II, (1958)”.
13 to facilitate on this highly technical issue without offering comments on legal controversial matters on baselines. However it makes clear that straight baselines are meant for avoiding complexity in the territorial sea borders and not the undue extension of national jurisdiction of a coastal state. UN study has exclusively dealt with the issue of straight baselines and underlying conditions for employing such system of lines. The work prescribes that for deep indentation which is primary criterion for adopting these baselines ‗several‘ indentations should be present on the coast.33 The word ‗several‘ has different connotations in ordinary parlance and legally.
US sponsored Limits in the Seas series34 started in 1970 by Hodgson is a tedious work done on straight baselines, whose maximum series concern analysis of straight baselines employed by different states. A booklet has been solely dedicated to the straight baseline principles to introduce standard guidelines for employment of such lines. The study aims at assisting the coastal states in determining and employing straight baselines in certain situations. As evident from its title the contents of booklet provide general guidance and do not offer unequivocal yardsticks. The study has analysed two primary issues; ‗deep coastal indentations‘ and ‗fringing islands‘ which are the basis for employing straight baseline.35
The dynamics of sea frontiers and baselines attracted the focus of statesmen, states, international organisations including social and natural scientists by the 1960. The study of Prescott in 1975 immediately after UNCLOS-III in 1974 at Caracas has its prominence from political geography aspect. The specific area of his discussion is sovereignty of the oceans with reference to maritime zones. Prescott‘s has discussed the fundamental conditions for the use of straight baselines. He has contested that the state practice on application is not
33 United Nations Office for Ocean Affairs and the Law of the Sea, Baselines: An Examination of the Relevant Provisions of the UNCLOS, (United Nations: 1989). Hereinafter “UN, Baselines: An Examination, (1989)”. 34 US Department of State (hereinafter “US”), Limits in the Seas(hereinafter “LIS”). 35 US, Developing Standard Guidelines for Evaluating Straight Baselines. LIS No. 106.
14 conforming to the stipulations of the law of the sea. His work is primarily limited to South American claims and problems in the sea.36
Bernaerts‘ work produces a broad comprehension of UNCLOS including delineation and importance of straight baselines with the help of a flow chart. His flow chart proved quite helpful in understanding the practical delineation of straight baselines.37
O‘Connell in 1982 gave thoughtful work on law of the sea. On account of straight baselines, he viewed that application of straight baseline was not a matter of scientific discovery rather an appreciation. He proposed that margin of appreciation should be extended in favour of the coastal state. He ruled out the possibility of applying Norwegian straight baselines conditions on the coasts of other states through state practice.38 The approach of O‘Connell seems practical and logical.
Beazley has provided deep insight on the pre-requisite parameters for employing straight baselines. For choosing straight baseline system he demands the presence of multiple deep indentations encompassing water to land ratio like bay and not isolated curvatures of minor nature. He suggests maximum segment length of single straight line as 45NM and requires that presence a number of islands for fulfilling second condition; islands fringing the coast.39
Kapoor and Kerr have emphasised on boundary delimitation matters. They have touched upon the establishing of baselines with particular reference to importance of geodetic data and surveys. Their study is more beneficial for
36 J.R.V. Prescott, Straight Baselines: Theory and Practice, in E.D. Brown and R.R. Churchill eds., The UN Convention on the Law of the Sea: Impact and Implementation, (Hawaii: Law of the Sea Institute, 1987). (Hereafter “Prescott, Straight Baselines: Theory and Practice”) 37 Arnd Bernaerts, Bernaerts’ Guide to the 1982 United Nations Convention on the Law of the Sea, (Canada: Trafford Publishing, 2006). Hereinafter “Bernaerts’ Guide to UNCLOS, (2006)”. 38 O’Connell, LOS, Vol-I, (1982). 39 P. B. Beazley, Maritime Limits and Baselines: A Guide to Their Delineation, 2nd. (ed), The Hydrographic Society, (Spec. Pub. Number 2, 1978). Hereinafter “Beazley, Maritime Limits and Baselines, (1978)”
15 hydrograph, cartographer and geographers which are useful to deal with technical aspects of baselines.40
The book has thrashed technical aspects of tidal data. Antunes has discussed some elementary notions about the tidal datum that have a fundamental role in the nautical charts and employing of straight baselines. He has analysed the provisions of UNCLOS in relation to tidal data and state practice for their effects, suitability and legality for clarity of interpretation.41
Tanaka‘s exposition covers a number of significant aspects of the public international law of the sea. He has partially explored the issue of straight baselines with reference to the underlying conditions for their application. He asserts vagueness in Article 7 of UNCLOS concerning straight baseline parameters re-emphasizing about the absence of any objective test for identification of deep indentation, fringing islands, segment length of these lines and directional coastal trends.42
The paper presented by Bateman and Schofield has its primary focus on the excessive straight baselines drawn in East Asia. It outlines different types of baselines and evaluates straight baselines claims based on these lines by coastal states. The paper examines the questionability of excessive claims, exploring the implication of state practice.43
Jenks‘ study mainly concerns with the adjudication of international cases in general, the problems faced, various techniques used and steps involved
40 D.C. Kapoor & Adam J. Kerr, A Guide to Maritime Boundary Delimitation, (Toronto: Carswell Legal Publications, 1986). Hereinafter “Kapoor & Kerr, A Guide to Maritime Boundary Delimitation, (1986)”. 41 Nuno Sergio Marques Antunes, Towards the Conceptualisation of Maritime Delimitation: Legal and Technical Aspects of a Political Process, (Leiden: Martinus Nijhoff Publishers, 2003). 42 Yoshifumi Tanaka, The International Law of the Sea, (New York: Cambridge University Press, 2012). Hereinafter “Tanaka, International LOS, (2012)”. 43 Sam Bateman and Clive Schofield, “State Practice Regarding Straight Baselines in East Asia – Legal, Technical and Political Issues in a Changing Environment” Presented in a conference ‘Difficulties in Implementing the Provisions of UNCLOS’, organized by the Advisory Board on the Law of the Sea (ABLOS), in Monaco on 16–17 October 2008. Hereinafter “Bateman and Schofield, “State Practice Regarding Straight Baselines, (2008)”
16 including preliminary objections. He has raised many issues relating to weakness of international decisions. Regarding Anglo-Norwegian case, he suggests the states for changing such decisions, if not by violence, through their practice. In his view, recourse to the Court is a barrier in the progressive development of international law.44
The paper comprises views and remarks of Westerman and Reisman at a seminar in 1988. Westerman argues that expansionists has pursued for coastal jurisdiction since 1951 whereas they had been unsuccessful in 1930. Reisman remarks that Anglo-Norwegian case was not at all about straight baselines. It was rather concerning exclusive Norwegian control over fishing due to importance for the locals. The decision was in fact a precursor of EEZ.45
The book Collected papers on International law is a laborious work by the son of Lauterpacht. The papers amply cover complex international law issues. The work contains one chapter exclusively on Anglo-Norwegian case with reference to its implications. Lauterpacht grades Anglo-Norwegian case in the ranks high in the ICJ judgments and posits that for someone it might be a daring piece of legislation.46
The work of Roach and Smith focuses on excessive maritime claims on account of straight baselines. The authors have amplified the concept of freedoms of seas in comparison with various maritime zones under UNCLOS. The book highlights the effects of excessive claims through unfounded straight baseline claims on different category of activities at sea. The authors have stressed on the observance of strict conditionality of straight baselines.47
44 Clarence Wilfred Jenks, The Prospects of International Adjudication, (London: Stevens and Sons, 1964). 45 Gayl S. Westerman, “Straight Baselines in International Law: A Call for Reconsideration”, 82 Am. Soc’y Intl L. Proc. 260 (1988). Hereinafter “Westerman, “Straight Baselines”, (1988)”. 46 Elihu Lauterpacht Ed., International Law: Collected Papers, Vol-3, (Britain: Cambridge University Press, 1977). 47 J. Ashley Roach and Robert W. Smith, Excessive Maritime Claims, 3rd Ed., (Netherland: Koninklijke Brill, 2012).
17 Churchill and Lowe have grasped UNCLOS in a broad spectrum. They have discussed various aspects of law of the sea. They have dedicated discussion on straight baselines and contend the using of vague and unjustified criteria by states for employing straight baselines unilaterally. They stress that fluid and ambiguous criteria of straight baselines had been pin pointed by Lauterpacht much before coming into codified provision in the form of a convention.48
The book has its fundamental focus on complex problems faced during maritime boundary delimitations with peculiar emphasis on Southeast Asia. The issues have been seen in the light of international judicial decisions and law of the sea. The straight baselines have been touched upon being pivotal in most of the maritime delimitations. Kittichaisaree considers that non- availability of standard legal position, to be followed, has vested wide discretionary powers in states for the adoption of straight baseline system.49
The book addresses the delimitation of maritime boundaries, the vexing issue between the states. It covers the historical prospective of delimitation and the practice of states. Straight baseline being the basic question in delimitation has been discussed. On opening of UNCLOS for signature Prescott showed his apprehension by commenting that imprecise language of Article would allow any coastal state in the world to employ straight baselines along the coast.50
The interpretation of treaty terms is considered a problematic issue that the courts and lawyers face.51 The most difficult area after coming into existence of a convention is its interpretation.52 The interpretation process involves the establishing of the meanings of some text, phrases or words of a treaty in real
48 R.R. Churchill and A.V. Lowe, The Law of the Sea, 3rd Ed., (Manchester: Manchester University Press, 1999). Hereinafter “Churchill and Lowe, LOS, (1999)”. 49 Kriangsak Kittichaisaree, The Law of the Sea and Maritime Boundary Delimitation in South-East Asia, (Singapore: Oxford University Press, 1987). 50 J.R.V. Prescott, The Maritime Political Boundaries of the World, (London / New York: Methuen, 1985). 51 Malcolm N. Shaw, International Law, 6th ed., (India: Cambridge University Press: 2008). Hereinafter “Shaw, International Law, (2008)”. 52 John O’Brien, International Law, (London: Cavendish Publishing Ltd., 2001). Hereinafter “O’Brien, International Law, (2001)”.
18 perspective.53 VCLT enumerates different tools for interpretation of treaties; good faith, textual, contextual interpretations in the light of object and purpose including supplementary means in the form of preparatory work.54
Shearer views the vagueness due to compromises on certain critical points that led to opaque texts eluding the meanings in UNCLOS.55
Azzam in his article has elaborated the sensitivity amongst the states over possessiveness of natural living resources of the sea within their territorial limits. Augmenting on the conflict between the governments of Brazil and France on lobster harvesting led to conflict between the two states. The Brazilian government had to ultimately issue ultimatum to French lobstermen to withdraw from Brazilian territorial limits.56
The UN Division of Ocean Affairs and Law of the Sea (hereafter DOALOS) has generally encompassed historical prospective of UNCLOS and universal participation during its negotiations. The document highlights different maritime zones measured from the baselines and their impacts on the sea. On the impacts of various new regimes, the study unfolds that by genuinely claiming territorial sea upto 12NM by the states may take into their jurisdiction, more than 100 straits inclusive of strategically important straits; Bab El-Mandeb, Hormuz, Gibraltar and Malacca.57
Churchill and Lowe have delved on various aspects of Law of the Sea covering many topics. They have discussed the conflicts of interest which may arise
53 Oliver Dorr & Kirsten Schmalenbach ed., Vienna Convention on the Law of Treaties: A Commentary, (London: Springer, 2012). 54 VCLT. 55 Alex G. Oude Elferink and Donald R. Rothwell Ed., Oceans Management in the 21st Century: Institutional Frameworks and Responses, (Netherland: Koninklijke Brill NV: 2004). 56 Issam Azzam, The Dispute between France and Brazil over Lobster Fishing in the Atlantic, 13 International and Comparative Law Quarterly 4 pp. 1453-1459 (1964). 57 UN Division for Ocean Affairs and the Law of the Sea, The United Nations Convention on the Law of the Sea – A Historical Perspective, available at www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm (accessed on 6 June 2014). (“Hereinafter UN DOALOS, Historical Perspective ”
19 between different states. In this regard they have evaluated the incident of Pueblo, the US vessel, alleged for spying by North Korea in its territorial sea and refuting the allegation by US government claiming that the vessel was on high seas which took the form of a serious conflict.58
Geng‘s article on military activities in the sea has taken different angles into account including legal aspects with reference to UNCLOS. She has highlighted that despite an apparent equilibrium created by UNCLOS on different activities in the EEZ, the differences of opinion and conflicts are still intact in the practice of states. She has emphasized particularly on military activities in the EEZ of other states. She analysed the case of USN Ship Impeccable posing danger of conflict due to physical interaction of military platforms between US and China.59
Kopela study primarily concentrates on dependent archipelagos. She enshrines that archipelagic matters are more specific to sea as compared to the coastal states. She argues that outwardly it seems that archipelagic matters have been adequately addressed by the law of the sea which is not the case. She has partially discussed the drawing of archipelagic lines and straight baselines. She contends that expansionary effects due to vagueness in Article 7 of UNCLOS are not un- anticipated which needs consideration in view of the purpose of straight baselines.60
International Law Association (hereafter ILA) formed a committee specifically on baselines under UNCLOS. It comprised a large number of experts, renowned judges of international forums and scholars mostly from Europe. Originally the mandate of the committee was to deliberate on normal baseline issues in reference to Sea-Level Rise. Nonetheless, its mandate was extended to straight baselines with the objectives, the salient being, to interpret and investigate relevant state practice on the
58 Churchill and Lowe, LOS, (1999). 59 Jing Geng, ‘The Legality of Foreign Military Activities in the Exclusive Economic Zone under UNCLOS’, Merkourios – International and European Security Law, Volume 28, Issue 74 (2012), Article, pp. 22-30. 60 Sophia Kopela, Dependent Archipelagos in the Law of the Sea, (Netherland: Koninklijke Brill: 2013).
20 matter. The committee analysed straight baselines from various angels expressing that a room for flexible interpretation is available due to the ambiguous terms and phrases of Article 7 as compared to Article 47 concerning archipelagic lines.61
Outline of the Study
The outline provides a brief description on which the research project bases. Conclusion has been given at the end of each chapter for clarity. The unfamiliar terms and phrases have been given their meanings when they appear first time in the study. A glossary of terms has been added as Appendix-II with detailed explanations. The first chapter is based on introduction which also bears outline of study and literature review.
Chapter 2 gives a broad overview of historical evolution of the maritime law. It emphasizes the role of various maritime nations in internationalizing maritime law. The study reflects the two sets of law; public and private, which have been grooming side by side with each other.
Chapter 3 conceptualizes baselines in general, normal baselines and straight baselines. It encompasses the underpinnings for the drawing of different types of baselines. It mentions about different Tidal datum, the most important factor in employing baselines. It provides methodology of the straight baselines and embodies analytical evaluation of Anglo-Norwegian case.
Chapter 4 produces the analysis of straight baseline issues from various angles to give deep insight of the problem. The chapter explores the salient factors behind the drawing of excessive straight baselines. The more specific factors have been discussed as; geographical, economic, political, strategic and psychological.
Chapter 5 debates different approaches to interpretation, in general, of ambiguous provisions of conventions or treaties in the light of VCLT with peculiar reference to UNCLOS. In this regard good faith principle, ordinary meaning, object, purpose,
61 ILA, Committee on Baselines, (2014).
21 additional and supplementary means of interpretation have been inquired severally in the light of opinions of writers and international judicial decisions.
Chapter 6 describes basic terms and phrases used in Article 7 like localities, coastline, deeply indented and cut into. Since these terms have no substantive meanings or procedural precision either in the TSC or UNCLOS, it has led to flexibility of understanding by the many coastal states. Contrarily, terms have been rigidly interpreted by other states. The chapter is dedicated to find ordinary meanings, object and purpose, trauvax preparatories (preparatory work) and state practice on these terms and phrases through interpretative techniques.
Chapter 7 relates to the rocks and islands. This chapter may seem out of context at first sight but is considered a prerequisite for clarity in the following chapter concerning the coasts fringed with islands. The presence of islands fringing the coast provides a second criterion for the drawing of straight baselines. The chapter elucidates the status of different categories of insular features with respect to employing of straight baselines. The chapter accounts for legality and validity of rocks, islands, artificial islands, LTE for the purpose of straight baselines.
Chapter 8 deals with the second set of conditions for drawing straight baselines after indentation and cut into criteria. In sequence Article 7 states that in case coastal state does not fit into the first set of conditions, it may adopt the system on second criterion; the presence of islands fringing the coasts. The text of Article 7 of UNCLOS does not offer either established criteria of fringing islands and immediate vicinity or any mathematical precision for the same.
Chapter 9 relates to miscellaneous issues concerning straight baselines. These are issues incidental to two basic conditions and have deep running repercussions on straight baselines as a system. These include; choice of base-points, segment length criterion, directional trends of coast, close linkage of water with the land domain, flexible versus rigid criteria for straight baselines, publicity of charts and customary law status of Article 7 of UNCLOS.
22
Chapter 10 describes the straight baselines‘ impact on regimes of different maritime zones like internal waters, territorial sea, contiguous zone and high seas/Area, EEZ and continental shelf. The prime emphasis of the chapter is on continental shelf. It is considered that impact of straight baselines on EEZ and continental shelf would not be complete without introducing impact on other maritime zones. The chapter analyses how the zones gradually move from complete sovereignty on landward side of baseline (internal waters) to seaward zones of coastal state sovereignty, sovereign rights and freedoms of flag and other states.
Chapter 11 gives a detailed appreciation of straight baselines impact on EEZ. This chapter presents a brief account of origin and legal status of EEZ. This zone receives particular attention being a boundary between coastal state sovereign exclusive rights with inclusive international community rights. The sovereign rights in EEZ are quite potent as compared to continental shelf. This twilight of national and international premises makes this zone more pivotal for impact of straight baselines in the areas like navigation, over flight, living and non-living resources, marine scientific research, military activities, law enforcement, laying submarine cables and pipelines.
Chapter 12 concludes the study and offers a few recommendations.
23 CHAPTER 2
HISTORICAL EVOLUTION OF MARITIME LAW
Maritime Law
Various terminologies for maritime law have been used in the annals of history like sea laws, lex mercatoria (merchant law), lex maritima (general maritime law), admiralty law and law of the sea. A fine bifurcation line of these terms would be difficult to draw. It seems that on various occasions these terms have been used interchangeably, substantively and practically.
The term maritime law has been defined and understood differently by various authors depending on their geographical and legal background. In the countries having common law system, generally, admiralty and maritime law are considered synonym.62 For others ―Maritime law exclusively governs activities at sea or in any navigable waters‖.63 The admiralty law which originated from Britain has been defined as, ―Admiralty law or maritime law is the distinct body of law (both substantive and procedural) governing navigation and shipping‖.64 In a few states the term ―admiralty law‖ is termed synonym for ―shipping law‖ referring to private maritime law dealing with matters such as salvage, collision, carriage of goods by sea, carriage of passengers, towage, pilot-age etc.65
The renowned maritime law expert Mukherjee through an e-mail message to author on November 25, 2014 communicated that admiralty law in England and Wales is separated from commercial law, which is a shipping term, comprises carriage of goods under bills of lading and charter parties and the subject of marine insurance. This separation does not exist in the US and Canada where all shipping law is
62 Source: http://www.britannica.com/EBchecked/topic/365510/maritime-law (accessed on 12 June 2013). 63 Source: http://definitions.uslegal.com/m/maritime-law/ (accessed on 12 June 2013). 64 Source: http://definitions.uslegal.com/a/admiralty-and-maritime/ (accessed on 6 June 2013). 65 David Joseph Attard, Malgosia Fitzmaurice and Norman A. Martinez Gutierrez, The IMLI Manual on International Maritime Law, Vol-I, (UK: Oxford University Press, 2014), 1. Hereinafter “Attard, Fitzmaurice and Gutierrez, IMLI Manual, Vol-I, (2014)”.
24 referred to as ―admiralty‖.66 Maritime law used to be and still mostly understood as the ―Law relating to registration, license, and inspection procedures for ships and shipping contracts, insurance and carriage of goods and passengers‖.67 One view about the maritime law is also taken that ―Maritime law is jurisprudence made law which is derived from the cases which have been decided by courts over a long period of time‖.68 According to some scholars, international maritime law being a specialized branch of international law governs maritime activities in general.69
In accordance with US legal dictionary definition, ―Law of the sea is a part of the international law pertaining to the rights over the high seas. It is a body of international law proclaimed by United Nations convention and covering a wide range of matters including territorial zones, access to and transit on the sea, preservation of environment, and resolution of international disputes‖.70 Scholars have treated law of the sea as public aspect of the law as well dealing with the ocean affairs.71
In accordance with the UNESCO, ―International public Maritime Law is characterized by the quantity and complexity of regulations on the use of the World Ocean. It was not created as a whole, but developed gradually in response to prevailing conditions.72 According to a UN study, maritime law is historically viewed as; ―a body of law regulating movement-of vessels, products and people-the new law of the sea has become increasingly a law of appropriation-the assertion of national claims to large portions of the earth‘s surface covered by the oceans.‖73
Mukherjee through an e-mail message to the author on November 25, 2014 is of the view that Law of the Sea is a branch of Public International Law governing inter-
66 Prof. Dr. Proshanto K. Mukherjee is a renowned scholar, maritime law expert who has served in various universities and organisations in different positions. Hereinafter “Prof. Dr. Mukherjee”. 67 Source: http://www.businessdictionary.com/definition/maritime-law.html (accessed on 14 July 2013). 68 Source: http://www.whatismaritimelaw.com/ (accessed on 12 June 2013). 69 Attard, Fitzmaurice and Gutierrez, IMLI Manual, Vol-I, (2014), 1. 70 Source: http://definitions.uslegal.com/l/law-of-the-sea/ (accessed on 11 June 2013). 71 Attard, Fitzmaurice and Gutierrez, IMLI Manual, Vol-I, (2014), 1. 72 Source: http://www.unesco.org/csi/act/russia/legalpro6.htm (accessed on 11 June 2013). 73 UN, Baselines: An Examination, (1989), vii.
25 state relationships and relationships between States and international organizations. Maritime Law is a generic term which has a public and private law component. The public law component would include law of the sea and also regulatory maritime law reflected in typical IMO and ILO Conventions. However, the term ―maritime law‖ is used in many jurisdictions to simply refer to shipping law, i.e., private maritime law which is a rather narrow depiction. The term ―admiralty law‖ is used only in common law countries which have admiralty jurisdiction in their judicial systems. It stems from English history and in that vein was distinctively different from the common law. Most former colonies of Britain have admiralty courts or admiralty jurisdiction empowered to deal with specifically enumerated subject matters.74
Taking into account careful examination of the different definitions it can be concluded that all the terminologies are not synonym. International maritime law seems a genus of which admiralty or private international maritime law or shipping law and law of the sea or public international maritime law are two species. Author thinks that the term maritime law is very wide, covering each and every matter pertaining to the oceans. It can, therefore, be defined as ‗a law relating to any activity at sea and persons and things about it‘. Admiralty or shipping law is related with private international maritime law, whereas, law of the sea is concerned with the oceans and its resources being a public international maritime law. However, occasionally ‗law of the sea‘ and ‗admiralty law‘ may overlap having mixed questions. The flow chart as in Figure-1 presents a distinction amongst different branches of maritime law according to the author.
74 Prof.Dr. Mukherjee.
26 Figure-1
Historical Tour de Horizon of Maritime Law
About 2.5 M years ago humans called ‗homo habilis‘ (species of the Hominini tribe) made tools of stones representing the Old Stone Age. In the New Stone Age, human beings domesticated animals, developed agriculture, used advanced tools, developed weaving skills and made pottery.75 Thousand years Before Christ, various river valley civilizations cropped up in different areas like ancient civilizations of Mesopotamia in Euphrates and Tigris River Valley, civilization of Egypt in River Nile Valley, civilization of China in Yellow River Valley and civilization of India in River Ganges and Indus River valley where agriculture flourished, trade was carried on the water highways into the seas.76
75 Source: http://www.jeffartis.com/schooldays/worldhistory.html (accessed on 13 August 2013). 76 Gerald J. Mangone, Law for the World Oceans, (London: Stevens and Sons, 1981), 5. Also in Source: http://www.jeffartis.com/schooldays/worldhistory.html (accessed on 13 August 2013).
27 Sea and human beings are patch associates since time immemorial. The nature of dependence on sea varied from time to time and place to place. Professor William Tetley emphasized about the antiquity and completeness of maritime law as a legal system in the following words;
―That maritime law is a complete legal system can be readily seen from its component parts. [.....] It is and has been a national and an international law (probably the first private international law). It also has had its own public law and public international law.‖77
The naval and maritime history, sometimes, have a wafer-thin line between the two. ―Maritime history embraces naval history; it is the overarching subject that deals with the full range of mankind‘s relationships to the seas and oceans of the world‖.78
Maritime history particularly involves the histories of science, international affairs, international maritime law, imperial growth and rivalry, politics, economics, trade, industry, technology, naval history, hydrography, cartography, oceanography, history of ship building, development of institutions and organizations and communications.79
Knowledge of history of any subject is vital for its understanding. Maritime Law without history is like a vessel on the high seas without a compass or navigational aids. Tetley posits ―It is well acknowledged that many aspects of commercial maritime law are in-fact derived from lex mercatoria‖.80 The renowned historian Gold views;
―[.....]The new law of the sea has in the past decade addressed itself to almost all areas of ocean use [.....]. Marine transport has been discussed in an almost abstract manner, as if it did not really fit or belong within the
77 William Tetley, Maritime Law as a Mixed Legal System, (with Particular Reference to the Distinctive Nature of American Maritime law, which Benefits from Both its Civil and Common Law Heritages), 23 Tul. Mar. L.J. 317 (1999) at 320. Hereinafter “Tetley, Maritime Law as a Mixed Legal System, (1999)”. 78 John B. Hattendorf, “The Uses of Maritime History in and for the Navy”, US Naval War College Review, Volume LVI, (Spring 2003), 15. 79 Ibid., 19. 80 William Tetley, Maritime Liens and Claims, 1st Ed., (London: Business Law Communications Ltd, 1985), 1.
28 public domain but needed to be confined to the more "private" region of international commerce, which was considered to be outside the scope of the law of the sea‖.81
There is a strong belief for the recognition of sea-borne trade and shipping to be amongst the most predominant and oldest uses of the world oceans and seas.82 The maritime law, from the oldest times, shaped itself in accordance with the practical needs of seafarers and merchants engaged in maritime trade. Sea and ocean‘s hazardous character has a great contribution to emphasizing the need to have legal solutions and doctrines regarding their uses by the mankind.83
As early as between 2000 B.C. and 1600 B.C. the sea laws of Babylon have been recorded in the code of Hammurabi. The old literature of Indian and Chinese civilizations has a mention of maritime interactions. The Arabs and Indian sea- faring and navigation in the Indian Ocean are recorded in the early history. The traces of trade between Indians and Romans since 200 B.C. are available; however, the laws and customs of their sea-faring were not very significant.84
The inherent tendency of ships to leave their territorial boundaries have played pivotal role in internationalizing maritime laws. Nations, scholars and mariners all have their shares in making the laws of sea contributory in nature. About law of sea development in the Mediterranean, Wigmore envisions;
"The empires on land rose and fell, one after another; and from time to time Europe's land found itself in a general condition of political and legal chaos. But, through all these vicissitudes there lived on at least one continuous, growing, and mature body of law. The sea-law continued, independently of racial and dynastic changes, because its vogue was in a region owned by no king or tribe or chieftain-the Sea. The galleys were its home. The mariners of all waters had a common life and experience; their common guide was the sun by day and the
81 Edgar Gold, Maritime Transport: The Evolution of International Marine Policy and Shipping Law, (Toronto: Lexington Books, 1981), xix. Hereinafter “Gold, Maritime Transport, (1981)” 82 Proshanto K. Mukherjee, Maritime Legislation, (Malmö: WMU Publications: 2002), 11. 83 Mukherjee, Maritime Legislation, (2002), 1. 84 Quoted in Elijah E. Jhirad and Alexander Sann, Benedict on Admiralty, 7th ed., Vol-I, (New York: Matthew Bender & Company, 1981), 1-3, 1-4. Hereinafter “Jhirad and Sann, Benedict on Admiralty, Vol-I, (1981)”
29 stars by night; and so the common custom of sea-merchants was sea law."85
Mukherjee perceives that maritime law history is lost in antiquity. It is tinged in maritime custom developed through interaction with the sea and its use. The oldest and prominent use of sea was shipping and seaborne trade. The evolution of maritime law is attributed to customs and practices of the seafarers and merchants. Sometimes custom, usage and adjudicative decisions were codified as ratio scripta (written reason) and were formulated into enactments by the legislating authority.86 The evolution and development of maritime law in different parts of the maritime world at various timings is discussed in the ensuing paragraphs.
Egyptian Law
There is recorded international voyage about 2650 B.C. in the time of Egyptian Pharaoh Snefru. He imported Cedar logs in bulk, loaded on forty ships, as very little wood grows in Nile valley.87 The earliest Pharaohs started operating state-owned maritime enterprises to avoid the cost due to overland supply and involvement of countless small traders.88 The Pharaohs exercising their authority beyond the coastal territories constructed ports and shipyards to meet the demands of overseas trade. Egyptian ships started traversing various ports of the world.89
The Egyptians and Minoans reigned supreme in the Mediterranean as early as between 3100 and 2890 B.C. sharing much in common and Egyptian‘s prominence is much evident.90 It is perceived that overseas trade in Egypt could not sustain
85 Jhirad and Sann, Benedict on Admiralty, Vol-I, (1981), 1-6 & 1-7. 86 Proshanto K. Mukherjee, Maritime Law and Admiralty Jurisdiction, Historical Evolution and Emerging Trends, 3 available at http://www.jtighana.org/links/trainingmaterials/Maritime%20Law%20&%20Admiralty%20Jurisdictio n.pdf (accessed on 6 June 2015) (hereinafter “Mukherjee, Maritime Law and Admiralty Jurisdiction”) 87 Lionel Casson, The Ancient Mariners: Seafarers and Sea Fighters of the Mediterranean in Ancient Times, (New York: Macmillan Company, 1959), 4-5. Hereinafter “Casson, The Ancient Mariners, (1959)”. Also in Gregory P. Gilbert, Ancient Egyptian Sea Power and the Origin of Maritime Forces, (Australia: Sea Power Centre, 2008), 28. Hereinafter “Gilbert, Ancient Egyptian Sea Power, (2008)”. 88 Casson, The Ancient Mariners, (1959), 9. 89 Ibid., 10. 90 Jhirad and Sann, Benedict on Admiralty, Vol-I, (1981), 1-5.
30 without the existence of maritime law. The potential for disrupting maritime trade of Egypt by non-state warlords and smaller city-states existed because of their ideal position to prey unprotected Egyptian commerce.91 According to Thucydides, the Eastern Mediterranean was infested with piracy and the story of the Egyptian Wenamun92 supports the rise of this activity. This unfolds the resistance to Egyptian trade by the state and non-state elements whenever there was low control of Egyptian maritime power.93 The hardships suffered by Egyptian mariners and merchants become evident from the following historical statement;
―The ship‘s crew from every house of commerce, they receive their loads. They depart Egypt for Syria, and each man‘s god is with him. But not one of them says: ‗We shall see Egypt again‘!‖94
Phoenician Law
During the 12th Century B.C. the Phoenicians, inhabitants of the Eastern Mediterranean, also known by the name of Canaanites were a nation of navigators and traders.95 The legacy of Phoenician maritime law is great but is still largely unknown for lack of research. The Phoenicians had been traversing around the North African coasts in the Mediterranean.
The Phoenicians‘ maritime customs and practices had passed the test of time and had become well known to the masters and mariners. The Phoenicians maritime supremacy devolved on Rhodians who benefitted from it.96 It is considered by some
91 Gilbert, Ancient Egyptian Sea Power, (2008), 40. 92 “Though this is a fictional story, it is clear to see the crumbling Egyptian power in this time, dealing with the Eastern Mediterranean states. From this document, one can see “common attitudes toward religion (especially the cult of Amun), the state of Mediterranean shipping practices, and even attitudes of foreign princes to Egyptian claims of supremacy in the region”. Source: http://anthropology.msu.edu/anp455-fs12/2012/11/29/the-story-of-wenamun/ (accessed on 10 February 2015). 93 Gilbert, Ancient Egyptian Sea Power, (2008), 40. 94 Miriam Lichtheim Ed., Ancient Egyptian Literature, Vol-II, The New Kingdom, (London / England: University of California Press, 1976), 170. 95 M. D. A. Azuni, The Maritime Law of Europe, Vol I, (New York: George Forman, 1806), 25-26. Hereinafter “Azuni, Maritime Law of Europe, Vol I, (1806)”. 96 Jhirad and Sann, Benedict on Admiralty, Vol-I, (1981), 1-5.
31 historians that the origin of Romans and Rhodian maritime law was Phoenician, the former being part of Phoenicia.97
Rhodian Law
By 300 B.C. islands of Rhode had developed as hub of maritime trade. Seaborne trade prospered in this era. The custom and traditions received support of maritime world and their patterns were followed. Rhodians seem to be at the peak of their powers at that time.98
The amendment, refinement and practice of the early ocean law occurred on the islands of Rhodes, which was an important Greek trading centre. Rhodian sea laws primarily dealt with relations between entities of various States or private citizens concerning commercial matters but were known as sea-laws. The important focus was that the seas were free for navigation by all nations and same concept gradually developed into the freedom of high seas doctrine.99 By 3rd or 4th centuries, the Rhodian law is assumed to have been shaped up completely. Despite this significance of Rhodians‘ maritime law, a few mentions are available in the work of classical authors.100
The distinctive peculiarity of the law of the sea has been acknowledged even in ancient times. The same can be corroborated from the historical statement made by the Emperor Antoninus (138-161 A.D) in a maritime dispute brought before him regarding plundering of a wrecked ship. His pronouncement has been referred with reverence by Welwod quoting; ―I am (saith he) the Lord of the world, but the law is the master of the sea; let that thy plaint and controversie Endemon be decided by the law of the Rhodians.‖101
97 Source: http://www.historyoflaw.info/law-development-phoenicia.html (accessed on 17 June 2014). 98 Jhirad and Sann, Benedict on Admiralty, Vol-I, (1981), 1-5. 99 Luc Cuyvers, Ocean Uses and their Regulations, (New York: John Wiley & Sons Inc, 1984), 14. 100 Jhirad and Sann, Benedict on Admiralty, Vol-I, (1981), 1-7. 101 Welwod, An Abridgement, (1613), 1-2. Also Azuni, Maritime Law of Europe, Vol I, (1806), 269. Also found in William Tetley, Maritime Liens and Claims, 2nd Ed., (Canada: International Shipping Publications, 1998), 8. Hereinafter “Tetley, Maritime Liens and Claims, (1998)”.
32
The status of decision by Emperor Antoninus is not free from criticism by some scholars being just an anecdote.102 The existence of Rhodian law has been badly rejected by Bynkershoek when he asserts that it was fabricated by hungry Greeks or others.103 Heineccius calls these laws a deception for learned-men.104 Similarly, Benedict and Cicero question the reality of Rhodian maritime code, whereas, Paulus and some other scholars support the existence of Lex Rhodia (Rhodian Sea Law).105 The study of variety of literature on this subject clearly suggests that the Rhodian law had shaped up by that time as a significant law.
Greek Law
The Greeks started their merchant marine during 11th Century B.C.106 The Greeks took over commercial law from the Phoenicians. It is considered that the Greeks were not a nation of navigators, rather of settlers. Following the footsteps of the Phoenicians, the Greeks realized that trade with foreign nations required a body of international maritime law. The Greeks adopted general average principle from the Phoenicians and implemented without refining it. The modern Western civilization was formed by the underpinnings of Indo-European Greek culture. The Romans conquered the Greeks and were captivated by the Greek culture and the Greek civilization.107
Chinese Law
The second millennium B.C.E. can be called the period of political and cultural domination of the Chinese civilization in the East Asia. They assimilated different groups of people in them. The Han dynasty reign spread in the Yellow River valley
102 Robert D. Benedict, The Historical Position of the Rhodian Law, 18 Yale Law Journal 4 pp. 223- 242 (1909), 234-236. 103 Jhirad and Sann, Benedict on Admiralty, Vol-I, (1981), 1-10. 104 Ibid., 1-10 & 1-11. 105 Source: http://www.duhaime.org/LawMuseum/LawArticle-383/Lex-Rhodia-The-Ancient- Ancestor-of-Maritime-Law--800-BC.aspx (accessed on 12 November 2014). 106 Source: www.greece.org//poseidon/work/articles/polemis_one.html (accessed on 12 November 2014). 107 Ackermann, Encyclopedia, Vol-I, (2008), XXXV.
33 and their successors included present-day Korea and Vietnam into their empire. Emperor Han period covets a prominent place in Chinese history.108 Between 246 B.C. and 210 B.C., Han gave China a law code and built vast networks of canals and roads.109 Emperor Wudi then using skills established maritime infrastructure, made use of recently invented rudder of ships, fishing fleets and trading junks of canton in surrounding ports and towns.110
The interactions in the form of trade and culture between Chang‘an, the Chinese capital, and Rome flourished along the Silk Road. It linked land and sea routes that included the Indian continent, Southeast Asia, Middle East and Persia.111 China was linked to Europe through the sea trade.112 The seaborne trade in Eastern part was dominated by Chinese traders; the central portion by the Parthian, Indian and Arabs; whereas the western part by the Roman merchants.113
Roman Law
Historically, the Romans have not been considered a maritime power either militarily or commercially. Greek influence on legal sphere of Romans seems apparent. The effect on commercial law in general and on provisions relating to jettison of cargo is specifically evident. The Greek commercial law found its place in the Roman legal codes so long as not contradictory to Roman law.114 Romans maritime law included much from the sea laws of Rhodes, Greeks and Phoenicians.115 It is presumed that Romans were not remarkable navigators and maritime traders.116
108 Marsha E. Ackermann et al., ed., Encyclopedia Of World History, Vol-I, (New York: Facts on File Inc., 2008), xxxvi. Hereinafter “Ackermann, Encyclopedia, Vol-I, (2008)”. 109 Milo Kearney, The Indian Ocean in World History, (New York: Routledge, 2004), 39. Hereinafter “Kearney, Indian Ocean, (2004)”. 110 Ibid., 40. 111 Ackermann, Encyclopedia, Vol-I, (2008), xxxvi. 112 Ben Simpfendorfer, The New Silk Road, (London: Palgrave Macmillan, 2009), 1. 113 Kearney, Indian Ocean, (2004), 41. 114 Hassan S. Khalilieh, Admiralty and Maritime Laws in the Mediterranean Sea (ca. 800-1050) (The Kitab Akriyat al-Sufun vis-à-vis the Nomos Rhodion Nautikos), (Brill: Leiden Boston, 2006), 7. Hereinafter “Khalilieh, Admiralty and Maritime Laws, (2006)”. 115 Harold J. Berman, Law and Revolution, (Massachusetts, London, Harvard University Press Cambridge, 1983), 339. Hereinafter “Berman, Law and Revolution, (1983)”. 116 Khalilieh, Admiralty and Maritime Laws, (2006), 7.
34 Romans invented hypothec (mortgage),117 although it might not have been applied yet to ships. The Athenian port of Piraeus had professional moneylenders and creditors for maritime trade.118 Loan was in vogue at an interest rate ranging from 12.5% to 30% per voyage, on both ship and cargo, repayable, like respondentia and bottomry, only if the voyage was successful.119 The transition of Roman law is not available as a result of the Germanic invasions, which cut off Europe from Roman law.120 Reid views; ―The two greatest problems in history, how to account for the rise of Rome, and how to account for her fall, never have been, perhaps never will be, thoroughly solved.‖121
The Digest of Justinian contained a number of maritime law principles, including number of liens (or privileges) having their origin in the Roman law.122
Modern maritime law is indebted however to Roman law for the Praetor‘s edict.123 The Praetor‘s edict put strict liability on the carriers by sea on the same footing as innkeepers.124 In later years, the Ordinance de la Marine of France (1861) adopted this edict into its provisions on the liability of carriers of goods by sea. The influence of Roman law on maritime law is great in the light of their civil law, for example the doctrine of negotiorum gestio.125 The doctrine is still recognized in civil law system and civil codes of various countries containing this law having different
117 John W. Cairns and Paul J. du Plessis, The Creation of The Ius Commune, (UK: Edinburgh University Press, 2010), 161. Also in Encyclopedia Britannica available at http://www.britannica.com/EBchecked/topic/280082/hypothec (accessed on 6 June 2015). 118 Khalilieh, Admiralty and Maritime Laws, (2006), 224. 119 Ibid., 225 120 Guy Halsall, ‘The Barbarian Invasions’ in The New Cambridge Medieval History, Vol I, edited by Paul Fouracre, (USA: Cambridge University Press, 2008), 36. 121 J. S. Reid, ‘The Reorganisation of the Empire’ in The Cambridge Medieval History, Vol-I, edited by H. M. Gwatkin and J. P. Whitney, (New York: The Macmillan Co., 1911), 54. 122 Berrman, Law and Revolution, (1983), 338-339. 123 Source: http://www.ancient.eu/Roman_Law/ (accessed on 11 February 2015). Also in Welwod, An Abridgement, (1613), 10. 124 Law Teacher, UK., Contract Of Carriage, (November 2013), Retrieved from http://www.lawteacher.net/free-law-essays/contract-law/contract-of-carriage.php?cref=1 (accessed on 22 February 2015). 125 Negotiorum Gestio is a type of spontaneous agency or interference by a person, called a negotiorum gestor, in the affairs of another, in his absence. Source: http://www.definitions.uslegal.com/n/negotiorum-gestio/ (accessed on 22 February 2014).
35 shades and language but with the same theme.126 This concept still prevails in the modern day principle of salvage as well as in the safety net. This principle is found in the Code Napoleon too.127
Lex Mercatoria and Lex Maritima
Lex mercatoria ―refers to a body of oral, customary mercantile law which developed in medieval Europe and was administered quite uniformly across Europe by merchant judges, adjudicating disputes between merchants‖.128 The historian Malynes talks about the antiquity of lex mercatoria saying that it is as ancient as the history of human law. It is rather older than any written law, even customs of this law prevailed before written moral laws of Moses.129 Some historians consider its origin in the Roman jus gentium (law of nations), ancient Phoenician, Greek and Rhodian.130 Lex mercatoria as an international body of rules applicable to merchants, was borne on voluntary basis in response to the needs of traders. Today, codification of lex mercatoria is being attempted from another angle, i.e. under the influence of international conventions. Malynes wrote in the ―Courteous to Reader‖ of his treatise as follows;
―I have intituled the Book, according to the Ancient name- of Lex Mercatoria, and not Jus Mercatorum because it is a customary Law, approved by the Authority of all Kingdoms and Commonweals, and not a Law established by the Sovereignty of any Prince, either in the first foundation, or by continuance of Time.‖131
Lex maritime refers to a body of oral rules, customs and usages relating to navigation and maritime commerce.132 Between the 9th and 12th centuries A.D., a lex
126 The civil codes of France, German, Japan, Switzerland, Italy, Dutch, Netherland, South Africa, Poland, Thailand etc. 127 Napoleon Code, Quasi Contracts, Title IV, Chapter I, Section 1372. 128 Source: http://definitions.uslegal.com/l/lex-mercatoria/ (accessed on 4 March 2015). 129 Gerard Malynes, The Ancient Law-Merchant, (London: Royal Exchange in Cornhil, 1685), 2. Hereinafter “Malynes, The Ancient Law-Merchant, (1685)”. 130 Chia-Jui Cheng, Ed., Clive M. Schmitthoff's Select Essays on International Trade Law, (London: Martinus Nijhoff Publishers, 1988), 23. 131 Malynes, The Ancient Law-Merchant, (1685), (a 1). Also found in Leon E. Trakman, The Law Merchant, (Littleton, Colorado: Fred B. Rothman & Co. 1983), 8. 132 Source: http://definitions.uslegal.com/l/lex-maritima/ (accessed on 12 December 2014).
36 maritima (ley marine in old French law as it was known in England) extended along the Atlantic seaboard of France from Spain to Flanders and to England and Scotland. The lex maritima was part of the lex mercatoria (a law merchant applicable to maritime commerce in general).133 Deriving from lex mercatoria of different commercial maritime laws has been greatly acknowledged by the nations and merchantmen.134
Byzantine Law
Byzantinian victory over King Totila of Ostrogothic made the Byzantinian mistress of Mediterranean, lonian, Adriatic, Black and Aegean seas including Red Sea.135 The 5th and 6th century A.D. can be called the golden period of Byzantines.136 The traces of Byzantine Maritime law are found from 6th until 11th centuries A.D. in the Mediterranean. The Muslims on conquest in Mediterranean adopted Byzantine system as long as it did not contradict their Islamic law.137 According to Ashburner, Byzantine maritime law was codified between 6th and 8th centuries A.D.138 Byzantine Maritime law developed alongside the rise of trade relations between European states around the Mediterranean Sea and during the expansion of the Roman Empire.
The Byzantines applied Rhodian law having recognition of the Greeks and Romans alike.139 The disputes of merchants and seafarers were decided by the special tribunals, setup in the Italian city states.140 Written Byzantine law relating to maritime matters hailed from two sources. First, the Book Basilica drafted by Emperor Basil (867-886). Second by his son Leon the Philosopher (886-912).
133 Tetley, Maritime Law as a Mixed Legal System, (1999), 321. Also found in Source: http://definitions.uslegal.com/l/lex-maritima/ (accessed on 12 December 2014). 134 Tetley, Maritime Liens and Claims, 1st Ed. (1985) 1. 135 Khalilieh, Admiralty and Maritime Laws, (2006), 10. 136 Kearney, Indian Ocean, (2004), 48. 137 Khalilieh, Admiralty and Maritime Laws, (2006), xii. 138 Walter Ashburner, The Rhodian Sea-Law, (Oxford: Clarendon Press, 1909), cxii. 139 John Hare, Shipping Law and admiralty Jurisdiction in South Africa, (South Africa: Juta & Co Ltd, 1999), 5. 140 GysHofmeyr, Admiralty Jurisdiction Law and Practice in South Africa, (South Africa: Juta & Co Ltd, 2006), 1.
37 These laws regulated different aspects of maritime trade.141 The Basilica was intended to be a re-codification of the Digest of Justinian.142
Arab and Muslim Law
It is estimated that the Makkan Arabs were adept in shipbuilding by 2000 B.C.143 The Quran which is primary source of the Islamic Law has a mention about the sea at various occasions. It categorically tells about the perils of the sea and its resources; ―It is He (Allah/ God) who subjected to you the sea, so that you may eat of its fresh meat, and bring up from ornaments which you wear.‖144 It further says ―And you may see the ships cleaving through it. So that you may seek His bounty and render thanks‖.145
In Quran the word ‗Al-Bahar‘ (sea) has been used 32 times146 in the Quran whereas word Al-Bar (land) appears 13 times147. The total comes to 45. The percentage for ‗sea‘ becomes 71% whereas for land is 29% which ratio still stands true.148
Since the defeat of the Byzantine fleet in 655 A.D., the Arabs who were masters in navigation reigned Mediterranean practiced maritime trade in forms similar to those followed by the Christian world particularly the Byzantine maritime law.149 Similarly Muslim sharing 60% of the Mediterranean maritime territories also influenced and European Christians traders transferred Muslim customs of trade to their homelands.150 Arabs continued their trade eastward to China and T‘ang
141 Azuni, Maritime Law of Europe, Vol I, (1806), 321-322. 142 Theodore F. T. Plucknett, A Concise History of the Common Law, (USA: Little, Brown and Co., 1956), 666. Hereinafter “Plucknett, A Concise History, (1956)” 143 Casson, The Ancient Mariners, (1959), 8. 144 Quran, 16:14. 145 Ibid. 146 Quran; 2:50, 2:164, 5:96, 6:59, 6:63, 6:97, 7:138, 7:163, 10:22, 10:90, 16:14, 14:32, 17:66, 17:67, 17:70, 18:61, 18:63, 18:79, 18:109, 20:77, 22:65, 26:63, 27:61, 27:63, 30:41, 31:27, 31:31, 42:32, 44:24, 45:12, 52:6, 55:24. 147 Quran; 5:96, 6:59, 6:63, 6:97, 10:22, 17:67, 17:68, 17:70, 27:63, 29:65, 30:41, 31:32. 148 Source: http://www.quranmiracles.com/2011/03/the-land-sea-ratio/ (accessed on 26 November 2014). 149 Khalilieh, Admiralty and Maritime Laws, (2006), 19. 150 Ibid., 256.
38 dynasty welcomed their ships.151 In any case, it is likely that the Arabs carried forward the maritime customs and basic commercial law from the Romans and Byzantines and helped spread them across the seas frequented by their ships. Traces of the work on maritime law regarding nautical books and maps are found in the treatises of Al Mukaddasi, Al-Massoudi, Ibn al Fakih152 and Al Biruni153.
Rolls of Oleron
The Oleron laws were named after Ile d'Oleron which situates off the coast of France on south-western side.154 The island of Oleron was an English territory during 12th century (now part of France). Rolls or Roles of Oleron was a collection of judgments rendered by the Merchant Courts established on the island of Oleron.155 It mostly comprised both; a collection of judgments and a compilation of mariners‘ practices.156 The Roles regulated the duties and responsibilities of the masters, ship- owners and merchants. These laws are considered the first recorded source of modern maritime law in Western Europe.157 Welwod documented this aspect of the Rolls;
―But on the great Ocean, which is our sea, the first laws we know to be made were devised by them of the island of Oleron, situate on the se-coast of France, [.....] La roold‘ Oleron; as by which the controversies on the sea coast of France towards the ocean were ordinarily decided […..].‖158
For several centuries the Rolls influenced the maritime law, legislation and its development very profoundly, being most comprehensive and articulate.159
151 Anand, Origin and Development of LOS, (1982), 20. Also in K. N. Chaudhuri, Trade and Civilisation in the Indian Ocean, (USA: Cambridge University Press, 1985), 34. 152 Anwar A. Aleem, History of Arab navigation in the Indian Ocean, Special Publication, (Marine Biological Association of India, 1973), 261. 153 Ibid., 258. 154 Jhirad and Sann, Benedict on Admiralty, Vol-I, (1981), 1-20 & 1-21. 155 Plucknett, A Concise History, (1956), 667. 156 Jhirad and Sann, Benedict on Admiralty, Vol-I, (1981), 1-21. 157 Ibid. 158 Welwod, An Abridgement, (1613), 3. 159 Jhirad and Sann, Benedict on Admiralty, Vol-I, (1981), 1-21. Also Source: http://www.britannica.com/EBchecked/topic/365510/maritime-law (accessed on 12 June 2013).
39 Statutes of Towns and Maritime Ports
In various towns and cities of the Western Mediterranean, ship-owners and merchants associated together and formed corporations to repel pirates. Some associations became as powerful as to take over the administration of towns. This included the power to proclaim statutes having the force of municipal law. Welwod emphasized about the development of various statutes in Mediterranean Towns in different centuries A.D. which include; Rome (1075), Marseille (1162), Genoa (1186), Pelopnnesus also called Morea (1200), Venice (1215), Constantinople (1262), Constantine (1270), James King of Aragon (1270), Peter King of Aragon (1340) and Barcelona (1434).160
Some of these statutes organized the administration of shipping and port instead of general maritime law or lex maritima. They are considered to influence the general maritime law and later the Consulate of the Sea.
Laws of Wisby
The middle ages (5th to 15th century A.D.) can be called the era of sophistication of maritime laws and codes. The sea Laws of Wisby or Wisbuy covets a pivotal place in this regard.161 The town of Wisby in Gotland islands, Baltic Sea, was a well- known centre of maritime commerce since 13th century,162 now in Sweden. The ―Dathogeste und datoldeste water rechte von Wisby‖ (the ancient and supreme water law of Wisby) was known to be the name of maritime code at that time.163 These laws were arguably derived from the Rolls of Oléron being similar to the Rolls and gained much authority in the area around Baltic countries.164
160 Welwod, An Abridgement, (1613), 3. 161 Anand, Origin and Development of LOS, (1982), 11. Also in Welwod, An Abridgement, (1613), 3. 162 Lynn Thorndike, The History of Medieval Europe, (Boston, New York, Chicago: Houghton Mifflin Company, 1917), 369. Also Berrman, Law and Revolution, (1983), 339. Also Jhirad and Sann, Benedict on Admiralty, Vol-I, (1981), 1-27. 163 Jhirad and Sann, Benedict on Admiralty, Vol-I, (1981), 1-27. 164 Berrman, Law and Revolution, (1983), 339.
40 Consolato Del Mare or Consulate of the Sea
In 13th century A.D., compiled at Barcelona, ‗Consolat de Mar‘165 was very famous and treated as more elaborate form of earlier codes applicable in various Mediterranean ports.166 The shore consuls dispensed maritime justice. The Consulate was a compilation of the consuls‘ decisions.167 The Consulate was of great significance168 but not absolutely free from criticism.169 The oldest manuscript is in Catalan170 and consists of about 294 chapters reflecting customs followed in the Eastern Mediterranean, especially on the Catalan coast. The Consulate covered much of the maritime law of the time, including; maritime contracts, navigation, rights and obligations of masters, sailors, vessel owner, cargo owner, passengers based on customs and codes.171
Guidon de la Mer
The treatise Guidon de la Mer was written in French in the late 16th century A.D. by an unknown author in Rouen.172 Comprising twenty chapters, the compilation is considered containing maritime law principles. They were very valuable particularly marine insurance173 and bottomry in a systematic and scientific manner.174 Compilation is perceived to bridge the Rolls of Oleron and Consulate of the Sea. The treatise is considered to contain highest authority.175 The historian Story opines that this Code deserves the praise and appreciation by the philosophic jurists due to its distinctive features.176
165 The name of a code of sea laws compiled by order of the ancient kings of Aragon. The major ports concerned were Barcelona, Valencia and Marseilles. The Consolatodates from the end of the fourteenth century, but the earliest surviving text is a Catalan vers ion from 1494. Source: Tetley, Maritime Liens and Claims, (1998), 21. 166 Source: http://www.britannica.com/EBchecked/topic/365510/maritime-law (accessed on 12 June 2013). 167 Azuni, Maritime Law of Europe, Vol I, (1806), 333. 168 Jhirad and Sann, Benedict on Admiralty, Vol-I, (1981), 1-27. 169 Azuni, Maritime Law of Europe, Vol I, (1806), 327. Also in Joseph Story, The Miscellaneous Writings, (Boston: James: Munroe and Company, 1835), 251. Hereinafter “Story, Miscellaneous Writings, (1835)” 170 Jhirad and Sann, Benedict on Admiralty, Vol-I, (1981), 1-27. 171 Azuni, Maritime Law of Europe, Vol I, (1806), 330-331. 172 Source http://thelawdictionary.org/le-guidon-de-la-mer/ (accessed on 11 January 2014). 173 Azuni, Maritime Law of Europe, Vol I, (1806), 391. 174 Story, Miscellaneous Writings, (1835), 256. 175 Jhirad and Sann, Benedict on Admiralty, Vol-I, (1981), 1-28. 176 Story, Miscellaneous Writings, (1835), 252.
41
French Laws
Early French system of law in the 12th centuries A.D. had many similarities with English common law.177 Since most of the French lawyers and judges were trained in Roman law,178 the 13th century judges applied customs proved through various sources including their personal knowledge and discretion.179 The soul of maritime law, the Rolls of Oleron, is considered having French origin by some historians.180
The most part of Commercial Code of France, adopted in 1807, comprised recodification of 1673 and 1681 ordinances. Nevertheless, it is a comprehensive document dilating upon bankruptcy, common carriers, partnership, insolvency and transitu stoppage.181 The 1807 Commercial Code was considered Model for European182 and Latin American countries.183
Ordonnace de la Marine
The Ordonnace de la Marine did not innovate any maritime law rather did codification and harmonization of the existing laws.184 The maritime treatises like Consolato del Mare, the Laws of Wisby and the Rôles of Oléron influenced the codification of Ordonnance de la Marine in 1681, by Colbert, the Minister of King Louis XIV.185
177 Berrman, Law and Revolution, (1983), 467. 178 Ibid., 470. 179 Berrman, Law and Revolution, (1983), 471. 180 Source: http://www.britannica.com/EBchecked/topic/365510/maritime-law (accessed on 12 June 2013). 181 Henry Flanders, A treatise on maritime law, (New Jersey: The Lawbook Exchange, Ltd., 1999), 24. 182 M.C. Mirow, Latin American Law, (Austin: University of Texas Press, 2004), 156. 183 Ibid., 164. 184 R. C. Van Caenegem, An Historical Introduction to Private Law, (New York: Cambridge University Press, 1996), 92. 185 International Labour Office, The International Seamen’s Code, (Geneva: 1921), 168-169. Also in James Reddie, An Historical View of the Law of Maritime Commerce, (London: William Blackwood and Sons, M.DCCC.XLI), 345-346.
42 The Ordonnace de la Marine written in French language received great esteem from the judges and jurists alike due to its comprehensive approach.186 The greatest legislative value of the Ordonnace had been acknowledged by the US Supreme Court in a case declaring; ―These Ordinances, and the commentaries on them, have been received with great respect, in the Courts both in England and the United States; not as containing any authority in themselves but as evidence of the general marine law‖.187
Malaccan Code
Like Europe the traces of the existence of maritime law have been found in some parts of the Asian continent. In the 13th century A.D., the Malayan people were having a famous maritime code. It had features similar to the European Maritime Laws with its own distinctive structure.188
The Malaccan Code was compiled during the reign of Sultan Mohammed Shah. It is considered a good piece of maritime legislation with peculiarity of the status of ship in the ports and on the high seas. The Code provided quasi-territorial authority of the nationality of ship on high seas exercised by the ‗nakhoda‘ (Master of ship).189 It was a comprehensive document not only based on customs and usages but having the sanction of the sovereign Sultan as a prevailing law. It contained various matters like jettison, troves (salvage) and demurrage.190
The code introduced different authorities for smooth functioning of the maritime affairs which included Bendahara, (Chief Minister Treasurer), Temenggong (head of courts and police), Laksmana (Commander of the Fleet) and Shahbanders
186 Jhirad and Sann, Benedict on Admiralty, Vol-I, (1981), 1-30. 187 Morgan v. Ins. Co. of N.A. 4 U.S. (Dall.) 455, Supreme Court of Penna. 1806, per Tilgham, C.J available at http://supreme.justia.com/cases/federal/us/4/455/case.html (accessed on 10 February 2015). 188 Anand, Origin and Development of LOS, (1982), 29. 189 Hassan S. Khalilieh, Islamic Maritime Law: An Introduction, (Netherland: Koninklijke Brill, 1998), 136. 190 Mukherjee, Maritime Law and Admiralty Jurisdiction, 8.
43 (Harbour Masters)191 who settled disputes between the foreigners.192 It contained specific provisions about the powers of captain (Nakhoda) over sailors for disciplinary purposes,193 ships‘ organization, and the office of Pilot Officer (Ma‘lim), shipwreck, ships in distress and fishing matters.194
English Law
Blackstone has divided the laws of England into two broad categories; Lex Scripta (written laws) and Lex Non-Scripta (unwritten laws or common laws including general and special customs).195 These laws of England, inter alia, may be summed up as; law of nations, divine law, ecclesiastical law, common law, natural law, general and special customary laws, Roman law, merchant and statutory law, and equity.196 In 13th century, a number of courts competed with each other in England for jurisdiction.197
According to jurist Gold, ―Black Book of the Admiralty‖ is the primary source of maritime laws in England.198 The origin of Admiralty Courts goes back to Saxon times. Henry-I is perceived to have started the Admiralty jurisdiction. During the time of Edward-III the authority of Admiral‘s Court particularly in respect of piracy and spoils at sea was absolute. Later the central criminal court Act 1834 extended this authority over territorial sea and open sea and her majesty‘s dominions.199
The maritime law of England comprises the statutory maritime law and common law. The common law itself is formed by two constituent elements; the lex
191 Anand, Origin and Development of LOS, (1982), 29. 192 Ibid., 30. 193 Hassan S. Khalilieh, Islamic Maritime Law: An Introduction, (Netherland: Koninklijke Brill, 1998), 136. 194 Anand, Origin and Development of LOS, (1982), 30. 195 William Blackstone, Commentaries on the Laws of England, Vol-I, (Oxford: Clarendon Press, M. DCC. LXV (1765), 63. Hereinafter “Blackstone, Commentaries (M. DCC. LXV)” 196 Blackstone, Commentaries (M. DCC. LXV), 63. 197 Plucknett, A Concise History, (1956), 63-64. Also in Bruce L. Benson, The Spontaneous Evolution of Commercial Law, 55 Southern Economic Journal (1989), 644-661 at 652. Also in Simonds, Halsbury’s Laws, Vol-I, (1952), 47. 198 Mukherjee, Maritime Law and Admiralty Jurisdiction, 7. 199 Lord Simonds, Halsbury’s Laws of England, 3rd Ed., Vol-I, (London: Butterworth & Co., 1952), footnote (h) at 47. Hereinafter “Simonds, Halsbury’s Laws, Vol-I, (1952)”.
44 mercatoria, the law merchant and the lex maritima, the maritime law.200 The foundation of Admiralty Courts goes back to the appointment of Admiral by the King. Admiralty Court had the authority to judge cases arising out of maritime law and prize matters.201 Admiralty‘s authority extended influence on maritime law and commerce.202 The English monarch had an interest in levying charges on foreigners directly without the intervention of Parliament.203 The law administered through Admiralty actions is the law comprising the act of Parliament or principles, decisions, traditions that emerged into English maritime law.204
US Maritime Law
The US, being a UK colony, had a Vice-Admiralty Court dealing with wide range of matters whether civil or maritime between merchants, owners or proprietors of ships. These courts handled charter parties, agreements, bills of lading, freight due for ships maritime usury (bottomry).205 Following independence from UK, it may be said that US maritime law went its own way bringing about comprehensive changes, substantive as well as procedural206 although it shares much in common with English Admiralty law.207 US were the first to legislate for the protection of shipper‘s rights208 which apparently became the basis for an international convention adopting the so-called Hague Rules 1924.
Peeping through the evolution of maritime law in different ages suggests that each and every maritime nation contributed towards the progressive development of maritime law. The qualitative and quantitative contribution may differ for each nation but individual share cannot be absolutely negated.
200 Mukherjee, Maritime Law and Admiralty Jurisdiction, 6-7. 201 Plucknett, A Concise History, (1956), 226. 202 Ibid., 670. 203 Source: http://www.british-history.ac.uk/report.aspx?compid=33009(accessed on 12 September 2014). 204 Simonds, Halsbury’s Laws, Vol-I, (1952), 50. 205 Jhirad and Sann, Benedict on Admiralty, Vol-I, (1981), 5-21. 206 The US Constitution, Article III, Section 2. 207 Tetley, Maritime Law as a Mixed Legal System, (1999), 326. 208 Section 190 of the Harter Act of 1893.
45 Glance at Maritime Claims in History
Study of maritime history unveils that extended and sometimes unreasonable claims had been made by the sovereigns in the sea. Depending on geographical situations, the motives behind could, inter alia, include; political environment, security considerations and economic gains. Nonetheless, the pendulum has swung between absolute freedom and appropriation of sea based on the interests of maritime powers.209 The concept of sovereignty of sea is ascribed to King Bodin since 1582 A.D. According to Seldon, the very first claim on sovereignty of sea was preferred by the British King Cnut, commonly known as Canute (1016-1035 A.D) saying;
―Thou, O sea, art under my dominion, as the land also upon which I sit is mine. And there never was any that disobeied (disobeyed) my command without punishment. Therefore I command thee not to ascend up upon my land, nor do thou presume to wet the feet or garments of thy sovereign.‖210 [Emphasis added]
The Papal division of the sea between Portugal and Spain was practically undermined by Henry-VII of England in 1497 by a voyage destined to North America to assert his naval might.211 The chronicles agree that Edger (959-975 A.D), cruised every year along the English coasts with a fleet of several thousand vessels. In 964 Edger issued a charter granting large revenues to the cathedral church at Worcester. The claim to the ocean around Britain was more definite and usually quoted by the writers maintaining antiquity of the English rights.212
In 1177 A.D. Venetians fought against Frederick Barbarossa in the honour of Pope Alexander III who had taken refuge in Venice due to persecution of the later. Venetians had a convincing victory and Pope granted his ring to Prince Doge to espouse the sea and celebrate it every year. He asked him to subject sea as wife to
209 O’Connell, LOS, Vol-I, (1982), 1. 210 John Selden, Of the Dominion, or the Ownership of the Sea, Trans: English (London: Special Command, 1652), 279. 211 Paolo Fabbri, Ocean Management in Global Change, (London / New York: Elsevier Applied Science, 1992), 3. Hereinafter “Fabbri, Ocean Management, (1992)”. 212 Thomas Wemyss Fulton, The Sovereignty of the Sea. An Historical Account of the Claims of England to the Dominion of British Seas, (Edinburgh / London: William Blackwood and Sons, 1911), 27. Hereinafter “Fulton, Sovereignty of the Sea, (1911)”.
46 the husband.213 Edward-I of England directed his officers to assert his authority by prohibiting fishing in British oceans.214
A conflicting view has prevailed as to whether the Pope being head of the Christian Church possessed the right for allotting sovereignty of any area not in possession of a Christian ruler. In 1454 Pope Nicholas-V was persuaded by the Portuguese to issue a Papal Bull for granting of title to them for the territories discovered along the coast of Africa.215 Reportedly the pope had issued the canon. Ferdinand, the King of Spain, following the example of the Portuguese approached the Court of Rome to grant ‗Bull‘ for the title of newly discovered or conquests by offering his conversion to the Catholic faith.216
In 1456, Pope Calixtus-III confirmed the earlier ‗Bull‘ promulgated by Pope Nicholas-V. The successors of Calixtus followed the pursuit.217 In 1493 Pope Alexander-VI issued a Bull bifurcating exclusive rights for the exploration of seas between Spanish and Portuguese over islands in the west of Cape Verde and to the east respectively which was amended through treaty of Tordesillas by Spain and Portugal in 1494.218
The legal doctrinal battle between the right to free sea and dominion over the sea dates back to Britain jurist Seldon, who conceived the concept of mare Clausum (closed sea),219 and Dutch jurist Hugo Grotius,220 who professed the idea of mare
213 Azuni, Maritime Law of Europe, Vol I, (1806), 78-79. 214 Ibid., 126. 215 Anand, Origin and Development of LOS, (1982), 43. 216 Azuni, Maritime Law of Europe, Vol I, (1806), 105. 217 Ivana Elbi, The Bull RomanusPontifex (1455) and the Early European Trading in Sub-Saharan Atlantic Africa, 2009 Portuguese Studies Review, Vol-17, No. 1 (Publ. 2012), 59-60. 218 Source: http://www.britannica.com/EBchecked/topic/14138/Alexander-VI (accessed on 8 March 2013). 219 O’Connell, LOS, Vol-I, (1982), 5. 220 “Hugo Grotius” is the commonly used anglicised version of the Dutch “Huig de Groot”. Source: Clive Schofield, Parting the Waves: Claims to Maritime Jurisdiction and the Division of Ocean Space, Penn State Journal of Law & International Affairs, Issue 1, Vol -1 (2012), 41.
47 Liberum (The Free Sea or The Freedom of the Seas).221 Grotius arguments were primarily based on divine scriptures, natural freedom of winds (waves), right of sociability and limitless of sea to be occupied.222 Seldon responded Grotius by saying that God invested dominion of whole earth (which included sea) in Noah, the sea by nature or notion is subject to ownership but did not specifically respond to other arguments of Grotius.223
In strict sense Selden‘s view of ‗appropriation of oceans‘ and Grotius concept of ‗freedom of seas‘ were national interest oriented for Britain sovereignty and Dutch East India Company.224 The present day law of the sea development can be attributed to the legal battle of these two personalities. The sovereignty over sea of the Britain King was contended by Welwod mainly based on theology,225 whereas Molloy argued on the basis of dominion over the sea.226 Britain which was staunch advocate of closed seas abandoned this stance in 1688 based on her current interests.227
Scandinavian and Mediterranean States made extensive claims at various occasions in history.228 Azuni took a very hard stance on the subjugation of sea by any one nation. He, unequivocally, declared that seas are free avenues of commerce and its resources for the use of all nations. Any nation which appropriates the sea is plunderer, usurper and enemy of human race. It is the duty of all nations to stand
221 O’Connell, LOS, Vol-I, (1982), 9. Also in Fulton, Sovereignty of the Sea, (1911), 5. Also in Donald R Rothwell and Tim Stephens, The International Law of the Sea, (UK: Hart Publishing Ltd, 2010), 3. Hereinafter “Rothwell and Stephens, LOS, (2010)”. 222 Denise Russell, Who Rules the Waves? Piracy, Overfishing and mining the Oceans, (London: Pluto Press, 2010), 14-15. 223 Ibid., 19 & 21. 224 C. John Colombos, The International Law of the Sea, 6th ed., (London: Longmans Group Ltd, 1967), 63-64. Hereinafter “Colombos, LOS, (1967)”.Also in Churchill and Lowe, LOS, (1999), 4. 225 Welwod, An Abridgement, (1613), 62-63. 226 Charles Molloy, De Jure Maritimoet Navali: or a Treatise of Affairs Maritime and of Commerce, (London: John Walthoe, 1676), 75. 227 Sam J. Tangredi, Globalization and Maritime Power, (Washington D.C.: National Defense University Press, 2002), 223. 228 Jean René Dupuy and Daniel Vignes Ed., A Handbook on the New Law of the Sea, Vol-I, (England: H Charlesworth & Co Ltd, 1991), 386.Hereinafter “Dupuy and Vignes, Handbook on LOS, Vol-I, (1991)”.
48 against such a nation as the sea and its resources belong to whole humankind.229 Moore strongly negated the notion of prima facie title of crown to the seashore and doctrine of King‘s prerogative in the sea. He criticized the writers and judges to bring forth this false idea, having its origin in Roman law.230
Twentieth Century Developments in Maritime Law
Man has been interacting with the sea since time immemorial. In the olden times the involvement of human being with the sea primarily restricted to the profession of fishing and as a medium of transportation. Before the first half of 20th century the ―freedom‖ certainly meant Laissez-Faire231 and non-regulation232 on the analogy of ―res nullius‖ (appropriator is owner). It converted into ―res communes‖ (Common property or ownership) with the advent of common heritage of mankind concept. Over the ages, the human awareness about the resources of sea has grown.233
The controversy between the ideas of jurists; Seldon and Grotius may be called the starting point for crystallizing and codification of law of the sea. The Institut de Droit International (Institute of International Law) work, however, was the first systematic endeavour from 1880 to 1890.234 The work of Institut had great difficulties particularly about territorial sea status as its resolution could not achieve any recognition.235
Post World War-I led the League of Nations to constitute a committee of experts for the codification of international law.236 Beside this, the ILA, the German and Japanese Society of International Law, the American Institute of International Law
229 Azuni, Maritime Law of Europe, Vol I, (1806), 10-11. 230 Stuart A. Moore, A History of Foreshore and the Law Relating Thereto, 3rd Ed., (New Jersey: The Lawbook Exchange Ltd, 2006), xxxi. 231 French: a doctrine opposing governmental interference in economic affairs beyond the minimum necessary for the maintenance of peace and property rights. Source: Merriam-Webster’s Collegiate Dictionary, 11th ed., (USA: Merriam-Webster, Incorporated, 2004), 697. 232 R. P. Anand, Law of the Sea, Caracas and Beyond, (Netherlands: Martinus Nijhoff Publishers, 1980), 37. Also Fabbri, Ocean Management, (1992), 9. 233 S.P. Jagota, Maritime Boundary, (Netherlands: Martinus Nijhoff Publishers, 1985), 4. 234 O’Connell, LOS, Vol-I, (1982), 20. 235 Ibid., 67. 236 Rothwell and Stephens, LOS, (2010), 4. Also Churchill and Lowe, LOS, (1999), 14.
49 and Harvard Law School bear a special mention for their contribution.237 The efforts of League of Nations failed to achieve desired results, due to disagreement on the regime of territorial sea.238
The 1945 Truman proclamation on the Continental Shelf marked the beginning of new era of extended claims varying from sovereign rights, control, jurisdiction and sovereignty.239 US President Truman announced; ―The government of the United States regards the natural resources of the continental shelf beneath the high seas but contiguous to the coasts of the United states, subject to its jurisdiction and control‖.240
Advancing claims beyond territorial sea of coastal states in the spirit of Truman Proclamation was not first such move. In this regard the salient developments included; division and annexation of the Gulf of Paria‘s seabed between UK (representing Trinidad and Tobago) and Venezuela in 1942.241 In 1946 Argentina claimed shelf that was termed as ―epicontinental sea‖, Chile, Peru in 1947 and Ecuador in 1950.242 The major impact of proclamation was large claims of up to 200 Nautical Miles (hereafter NM)243 of territorial sea by some African and Latin
237 O’Connell, LOS, Vol-I, (1982), 20-21. 238 Rothwell and Stephens, LOS, (2010), 4. 239 Dupuy and Vignes, Handbook on LOS, Vol-I, (1991), 326 & 327. 240 US Presidential Proclamation No. 2667, Policy of the United States With Respect to the Natural Resources of the Subsoil of the Sea Bed and the Continental Shelf of 28 September 1945 at 67. Also D. J. Attard, The Exclusive Economic Zone in the International Law, (Oxford: Clarendon Press, 1987), 2. Hereinafter “Attard, Exclusive Economic Zone, (1987)”. Also Bernaerts’ Guide to UNCLOS, (2006), 3. 241 Jonathan I. Charney and Lewis M. Alexander ed., International Maritime Boundaries, Vol-I, (Dordrecht / Boston / London: Martinus Nijhoff Publishers, 1993), 639-654. Hereinafter “Charney and Alexander, Maritime Boundaries, Vol-I, (1993)”. In this context Article 5 of the treaty refers; “solely to the submarine areas of the Gulf of Paria, and nothing herein shall be held to affect in any way the status of the islands, islets or rocks above the surface of the sea together with the territorial waters thereof.” Source: Charney and Alexander, Maritime Boundaries, Vol-I, (1993), 653. 242 Source: http://www.un.org/depts/los/convention_agreements/convention_historical_perspective.htm#Hist orical%20Perspective (accessed on 11 February 2013). 243 Technically the correct abbreviation for a nautical mile is “M,” with the “nm” referring to nanometres. However, “nm” is widely used by many authorities (for example the UN Office of Ocean Affairs and the Law of the Sea) and appears to cause less confusion than “M,” which is often taken to be an abbreviation for metres. Source: Clive H. Schofield, Blurring the Lines: Maritime Joint Development and the Cooperative Management of Ocean Resources, Issues in Legal Scholarship,
50 American states like Chile whereas these extended claims were vehemently opposed by developed states like USA and USSR.244 This shows that trend for expansionism had been visible but the proclamation convincingly acted as catalyst to accelerate the speed for the expansion of maritime claims.
Post Second World War Developments and Emergence of Law of the Sea
After the creation of UN, the first genuine attempt to codify law of the sea was made by the International Law Commission (hereafter ILC) in 1948. The concerted efforts of ILC emerged into first UN Conference on Law of the Sea (UNCLOS-I).245 Notwithstanding this, Truman Proclamation had sparked a need to codify maritime jurisdictional law of the sea clarifying rights and obligations of the coastal states. The adoption of four Geneva Conventions246 was an outcome of the strenuous struggle and work of ILC in UNCLOS-I in 1958.247 All the conventions entered into force.248 These Conventions were considerable achievement but were not perfect as they did not define the limit of territorial sea and exploitation criteria beyond continental shelf regime.249 The criteria of continental shelf exploitation were fluid and faulty. UNCLOS-II was convened, however, it failed without any headway.
The discovery of Poly-metallic nodules in the sea as well as increasing military use led Malta to put forward proposal before 1967 UN General Assembly to review these issues. The object was that natural treasures falling outside the jurisdictions of states could be declared the Common Heritage of Mankind and use of the seabed should be only for peaceful purposes. This emerged into adopting a resolution to convene
Berkeley Electronic Press, Vol-8, No. 1 (2009), (Frontier Issues in Ocean Law: Marine Resources, Maritime boundaries and the Law of the Sea), Article 3, 1. Hereinafter “Schofield, Blurring the Lines, (2009)”. 244 Churchill and Lowe, LOS, (1999), 161. Also Fabbri, Ocean Management, (1992), 8. 245 Churchill and Lowe, LOS, (1999), 15. 246 These conventions are; TSC, HSC, The Continental Shelf (CSC) and Fishing and Conservation of the Living Resources of the High Seas. Available at UN Treaties collection Website: https://treaties.un.org/pages/UNTSOnline.aspx?id=1 (accessed on 8 May 2015) 247 UN Conference on Law of the Sea, Official Records, Vols. I-VII, (Geneva, Feb 24 - Apr 27, 1958), UN Doc.A/Conf.13/37-43. 248 Shaw, International Law, (2008), 555. Also in Bernaerts’ Guide to UNCLOS, (2006), 4. 249 US Geological Survey Research 1968, Geological Survey Professional Paper 600, (US: Washington, 1968), A81.
51 UNCLOS-III in 1973. The aim was to establish an international regime and machinery for regulating the exploitation of resources of the international seabed.250 The situation had changed and archipelagic states, landlocked states and newly liberated states from colonial regimes usually called as G-77, which actually comprised over 100 countries, became active. They could not participate in the negotiations of Geneva Conventions and they exerted pressure that paved the way for UNCLOS-III.251
Part-XI of the UNCLOS-III relating to exploitation of deep seabed was not easy digesting for the technologically advanced countries. Contrarily, the non-developed countries had a great emphasis on reserving this area for the welfare of whole mankind.252 Oceans cover approx. 335.0 million km2 area of the earth, whereas continental shelf and extended continental shelf claims cover sea area of 131.0 million km2.253
The delegates from over 150 countries represented different regions of the world for negotiation of UNCLOS-III which lasted for nine years. The concluding session was held at Montego Bay, Jamaica from 6 to 10 December 1982, culminating into UNCLOS and opened for signatures.254
UNCLOS is a comprehensive document which covers most of the aspects already dealt within the four Geneva Conventions. It contains a stipulation that in case of competition between UNCLOS and Geneva Conventions, the former shall prevail.255
250 Resolutions adopted by the General Assembly at its 25th session, Doc No. A/RES/2750(XXV) C. 251 Maurice Hope-Thompson, The Third World and the Law of the Sea: The Attitude of the Group of 77 Toward the Continental Shelf, 1 B.C. Third World L.J. 37 (1980), 37-38. Also Churchill and Lowe, LOS, (1999), 17. 252 Peter Ehlers and Rainer Lagoni Ed., International Maritime Organisations and their Contribution Towards a Sustainable Marine Development, (Hamburg: Lit Verlag, 2006), 148. Hereinafter Ehlers and Lagoni, IMO Contribution, (2006)”. 253 Tina Schoolmeester and Elaine Baker Ed., Continental Shelf – The Last Maritime Zone, (Norway: UNEP/GRID-Arendal, 2011), 28. Hereinafter Schoolmeester and Baker, Continental Shelf, (2011)”. 254 Source: http://www.un.org/depts/los/convention_agreements/convention_overview_convention.htm (accessed on 12 March 2013). 255 Article 311(1) of UNCLOS.
52 Most of the UNCLOS provisions have reflected customary international law. Mere signatures of the states participating in any convention are not without effects. Every convention has consequences of its own depending on nature of a particular treaty. Simple signature of a convention may have potential advantages for the signatory states.256 A novel feature of the UNCLOS is that its signature bears two effects for the signatory states; the incentive to participate as member in the preparatory commission concerning International Seabed Authority (hereafter ‗ISA‘) and the International Tribunal for Law of the Sea (ITLOS) for voting purposes.257 The signatory state has the obligation of not defeating the purpose of convention, unless the intention of the state is clear not to become its party.258
UNCLOS is a praiseworthy document, being a legal and political order of the oceans, stipulating rights and duties of various stakeholders. The difference may be on the starting line but not generally on the extent of zones per se. It contains substantive provisions about variety of aspects which include; delimitation of maritime zones, management of living and non-living resources, environmental issues, navigation of vessel, piracy, research, sea bed areas etc. But it cannot be called simply a manual of delimitation, a treaty of resources of the sea, environmental guide book or an admiralty code. In true spirit it can be declared a jurisprudence of Maritime Law.
UNCLOS very frequently calls upon the states to cooperate with each other to pursue the goal of peaceful sea. UNCLOS has struck a balance between the sovereignty, sovereign rights in the sea and international community rights on the high seas and sea-bed area. Fixing outer limits of various maritime zones is certainly a biggest achievement of UNCLOS. It is a reality that UNCLOS has many shortcomings inherently embedded due to package deal and compromises. The compromises resulted in ambiguities, vague language, and impreciseness, absence of arithmetical procedural parameters and at occasions silence in the convention.
256 Duncan B. Hollis Ed., The Oxford Guide to Treaties, (UK: Oxford University Press, 2012), 211. 257 Vivian Louis Forbes, The Maritime Boundaries of the Indian Ocean Region, (Singapore: University Press, 1995), 61. 258 Article 18 of VCLT.
53 Conclusion
Maritime law without its history is just a ship at sea without navigational aids. The lex maritima and lex marcatoria groomed side by side with each other as patch friends. The development of maritime trade in general is inseparable from the progress of general maritime law. The role of various nations in the evolution of maritime law may differ quantitatively. Kings claiming sovereignty of sea and challenging by others cannot be obviated in evolution of maritime law. The prism of history substantiates that most of the nations and rulers acknowledged the maritime law work and continued its progressive development unlike the laws on land.
The scholarship has differing opinions about the development of maritime law ranging from role of various nations, Christian secularism and Papacy verdicts in the development of this branch of law. A number of analytical justifications may be discerned on both sides which scholarly inquiries have been doing for a long time. Notwithstanding the variety of views on the progression and development of maritime law, the profound reality is that this development is the result of shared normative values of maritime societies. Each and every ship, her crew which sailed to a foreign port with a set of rules contributed in the development of maritime law. In fact maritime law came into existence; the day first crew sailed with his ship to another country. The ship brings with her the traditions, customs, intellect, law and regulations apart from the cargo. The diversity of these values and norms nurtured the progressive development of maritime culture and law.
The claims to the sea had been hanging between absolute sovereignty and absolute freedoms of the sea. UNCLOS provided a compromise between centuries old doctrinal battle between the Mare Liberum of Grotius and Mare Clausum of Selden. It is one of the few conventions that had negotiation of states and customary practice at its backing. Most of UNCLOS regimes acquired customary international status well before it came into existence. UNCLOS being an offspring of compromises, its language is ambiguous at many places, is silent on many issues and lacks clarity in certain areas.
54 CHAPTER 3
BASELINES
Controversies between coastal states crop up on maritime boundary claims just like land demarcation disputes. The foundation stone of the edifice of maritime claims rests on the selection of baseline that determines the extent of coastal state territorial sea259 and other maritime zones (Internal waters260, Contiguous zone261, EEZ262 and Continental Shelf263). It is significant to establish reference points on the coast of state for determining the outer limits of its maritime zones at sea. UNCLOS identifies different baseline systems for delimitation of various zones. The baselines are the starting point for the construction of maritime zones and the starting point for generating controversies as well. Choice of the type of baseline for measuring various maritime zones plays a pivotal role in shaping the maritime claims. On regular coasts the default baseline is the normal baseline. The straight baselines though provide an easy solution for irregular coastal configurations but have proved controversial on account of their practical application.
Baseline - Defined
In ordinary parlance baseline is; ―clearly defined starting point (point of departure) from where implementation begins, improvement is judged, or comparison is made‖.264
Black‘s law dictionary defines baseline as; ―the line that divides the land from the sea, by which the extent of a coastal jurisdiction is measured.‖265
259 The territorial sea may extend upto 12NM measured from baselines. Source: Article 2 of UNCLOS. 260 Waters on landward of the baselines are internal waters. Source: Article 8 of UNCLOS. 261 Contiguous zone may extend to 24NM from baselines. Source: Article 33 (2) of UNCLOS. 262 Exclusive economic zone may extend upto 200NM from baselines. Source: Article 57 of UNCLOS 263 Continental shelf consists of seabed and subsoil. It extends to 200NM but may not extend beyond 350NM to the maximum based on geological and geomorphological criteria. Article 76 of UNCLOS. 264 Source: http://www.businessdictionary.com/definition/baseline.html (accessed on 17 September 2013). 265 Bryan A. Garner, Black’s Law Dictionary, 7th ed., (USA: West Group, 1999), 145. Hereinafter “Garner, Black’s Law Dictionary, (1999)”.
55
Parry and Grant Encyclopaedic dictionary enshrines that; ―The term baseline connotes the line from which the breadth of territorial sea (or other maritime zones) is measured.‖266
Typology of baselines under UNCLOS stipulates four types of baselines; ‗normal baseline‘267, ‗straight baselines‘,268 ‗closing lines‘269 and ‗archipelagic lines‘270 depending on the nature of coast. UNCLOS portrays flexibility to the coastal states in choosing the appropriate method; normal or straight or a mix of both these baseline systems within specified parameters. Archipelagic state may have the opportunity to mix all kinds of baselines.
Normal Baselines
In 1804 jurisdiction case the word ‗coast‘ came under discussion and it was ultimately declared by the court that ‗coast‘ means the low water line to measure the territorial sea.271 However, Anglo-French fisheries Convention 1839 was the first treaty to refer to the low-water line being the normal baseline for measuring territorial sea.272 In 1882 North Sea Fisheries Convention declared low water mark as the standard which was mostly followed by the European countries, writers and by a few writers from civil law.273 In Alaska boundary case between Great Britain and US, the judge Lord Alverstone pronounced that word ‗coast‘ was ambiguous having different connotations which might be used in two or possibly more than two senses. He opined that not only we are entitled rather we are bound to ascertain the spirit in
266 Clive Parry et al., Parry & Grant Encyclopedic Dictionary of International Law, (New York: Oceana Publications, Inc., 1988), 41. 267 UNCLOS, Article 5. 268 Ibid., Article 7. 269 Ibid., Articles 9 & 10(4). 270 Ibid., Article 47. 271 Soult v. Africaine (1804) 22 Fed.Case page 805 at 807. 272 UN, Baselines: An Examination, (1989), viii. 273 Ibid., 172.
56 which negotiators of the treaty used the word ‗coast‘.274 Roman law described the word ‗shore‘ from the high water mark275 instead of low water line.
Hague Codification Conference 1930 (hereafter Hague Conference) considered the issue of baseline as a part of their work on law of the sea. The conference committee‘s draft articles on territorial sea proposed six articles on baseline. The areas deliberated included; low-water line, LTE, bays, harbour works, islands and rivers. ILC had the advantage of having ICJ decision,276 report of Expert Committee 1953 and commentaries available for reference. It is evident from Anglo-Norwegian case judgment that unless special circumstances exist, the default baselines are the normal baselines, being generally accepted criterion, measuring from low water mark.277
Before UNCLOS, the rules concerning baselines were treated in connection with the territorial sea being the only jurisdictional zone of a coastal state. It is not tenable now when baseline is used to measure limits of Contiguous Zone and EEZ, and in certain circumstances278 Continental Shelf and extended Continental Shelf as well.279 The idea of baseline had fundamental changes and developments post judgment in Anglo-Norwegian case, by the ICJ, TSC and finally in UNCLOS. Normal baseline has its basis on scientific and physical tidal variations whereas straight baseline has its genesis in juridical phenomenon based on a treaty codification. TSC280 and UNCLOS281 express materially in identical manner that; ―the normal baseline for measuring the breadth of the territorial sea is the low water line along the coast as marked on large-scale charts officially recognized by the coastal state.‖
274 Opinion of Judge Lord Alverstone in the Alaska Boundary Case 1903, UN Report Vol-XV, pp. 481-540 at 496. 275 O’Connell, LOS, Vol-I, (1982), 171. 276 Anglo-Norwegian case. 277 Anglo-Norwegian case, 128. 278 Continental shelf is partly exception to this process in the light of section 76 of UNCLOS. 279 Tanaka, International LOS, (2012), 43. 280 TSC, Article 3. 281 UNCLOS, Article 5.
57 The UN study reads; ―The low-water line is the intersection of the plane of low water with the shore. The low-water mark on a chart is the line depicting the level of chart datum. [.....]. In practice it shall be close to the lowest tidal level‖.282 The world coasts are charted although may not be on a large-scale charts and perfectly accurate. The countries may have the option of using their own charts published and officially recognized. In case they do not have the choice of their own published charts, they may adopt the charts published by any other country which surveyed their coasts. However, the country using the charts should officially declare as to which charts she recognizes.283 DOALOS study prescribes the scale between 1:50000 and 1:200000 for fulfilling large- scale chart requirement in the spirit of Article 5 of UNCLOS.284
The usage of existing charts has been permitted under the international law. The problem with such charts may usually arise with reference to their accuracy, small scale or being old. Issue may be more problematic in drawing straight or archipelagic baselines than normal baseline.285 The determining of low-water line for the purposes of baseline to measure the various maritime zones may be comparatively simple and less problematic. Normal baseline mainly depends on the choice of datum286 particularly the vertical datum.
Like some other terms used in TSC and UNCLOS, no specific vertical datum has been defined in both the conventions for utilizing as standard datum. This choice wholly devolves on the coastal state to decide the chart datum. This is a basic and important factor before drawing normal baselines because the most low-water line choice extends seaward jurisdiction of the coastal state. Controversies have not arisen on account of employment of normal baselines due to insignificant appropriation of expanses in comparison to the straight baseline. The vertical tidal
282 UN, Baselines: An Examination, (1989), 3. 283 Ibid., para 3 at 1. 284 UN, Baselines: An Examination, (1989), para 8 at 2. 285 Ibid., para 4 at 1-2. 286 International Hydrographic Bureau, A Manual on Technical Aspects of the United Nations Convention on the Law of the Sea, 1982, Special Publication No 51, 4th ed., (2006), para 2.2 at 2-3. Hereinafter “IHB, Manual (2006)”.
58 datum and lower tidal datum choice greatly effects the extent of maritime claims.287 The choice of datum, inter alia, in the context of normal baselines can bring changes leading to maritime jurisdictional claims to outer limits.288
Various datum choices include; Lowest Astronomical Tide (LAT), Highest Astronomical Tide (HAT), Lowest-Low Water Spring Tide (LLWST), Mean Low- Water Springs (MLWS), Mean High-Water Springs (MHWS), Mean High Water Neaps (MHWN), Mean Low Water Neaps (MLWN), Mean Sea-Level (MSL), Mean Higher High-Water (MHHW), Mean Lower High-Water (MLHW), Mean Lower Low-Water (MLLW), Mean Higher Low-Water (MHLW).289 The British Chart290 given below has been taken as example to elucidate the concept of some of tidal data. Chart-1
287 Bateman and Schofield, “State Practice Regarding Straight Baselines, (2008). 288Prescott and Schofield, Maritime Political Boundaries, (2005), 100. 289 O’Connell, LOS, Vol-I, (1982), 173-174. Also in Nuno Sérgio Marques Antunes, The Importance of the Tidal Datum in the Definition of Maritime Limits and Boundaries, Maritime Briefing, Volume 2, No.7 (IBRU: 2000), 28-29. 290 Source: Nuno Sérgio Marques Antunes, The Importance of the Tidal Datum in the Definition of Maritime Limits and Boundaries, Maritime Briefing, Volume 2, No.7 (IBRU: 2000), 30.
59
The vertical datum is inversely proportional to the location of the landward baselines. The higher the vertical datum, the closer is the baselines to the landward location. On the same pattern, lower the vertical datum, the farther the baselines from landward location. Further seaward is the low water line, so downward to sea would be the line for measuring the maritime claims. The states have generally favoured the low vertical datum to determine the normal baselines. The actual practice of states mostly favours LAT for the purpose. Yet some other use the LLWST, which is based on spring tides observations, over a certain period of time.291 On the effects of geodetic data, Kapoor and Kerr express that delimitation may not be fairly done if one state has availability of modern geodetic data and the other state possesses charts from sketchy surveys. The situation would require fresh survey of the coastal area of concerned state for negotiation on better geodetic data.292
The normal baseline is low-waterline (along the coast) or in case of an island or atoll,293 the seaward low-water line of any reef;294 for delimiting territorial sea. Permanent harbour works forming integral part of harbour system are regarded part of the coast. TSC and UNCLOS lay down rules for different geographical situations. Rules for normal baseline shall not apply where coasts are deeply indented or fringed with islands, bays, harbour works, river mouths, LTE, islands and reefs. Figure-2 shows a hypothetical normal baseline situation.
291 IHB, Manual (2006), 2-18. 292 Kapoor & Kerr, A Guide to Maritime Boundary Delimitation, (1986), 13. 293 A ring-shaped reef with or without an island situated on it surrounded by the open sea, that encloses or nearly encloses lagoon. Source: UN, Baselines: An Examination, (1989), 50. 294 A mass of rock or coral which either reaches close to the sea surface or is exposed at low tide. Source: UN, Baselines: An Examination, (1989), 60.
60 Figure-2 (emphasis added) Normal Baseline295
Straight Baselines
The coast which is geographically irregular and complicated, straight baselines may be drawn instead of normal baselines.296 Article 7 of UNCLOS presents the conditions in which the straight baseline system can be adopted but it does not provide any definition explaining what the straight baseline is. The UN study has endeavoured to define the term as; ―Straight baselines‖ are a system of straight lines joining specified or discrete points on the low-water line, usually known as straight baseline turning points. A ―straight line‖ is mathematically the line of shortest distance between two points‖.297 A majority of the coastal states have used the vague criteria for unjustified and unilateral straight baseline claims.298
The UN study highlights that application of Articles 5 (normal baselines) and 10 (bays principle) could in certain circumstances emerge into enclaves and deep- pockets of ‗non-territorial seas‘. This situation might create ―considerable difficulties for both the observance of the appropriate régime and surveillance‖.299 Figure-3 shows a hypothetical situation for drawing straight baselines on indented coasts;
295 Source: Adapted from www.linz.govt.nz/sea/nautical-information/maritime- boundaries/maritime-boundary-definitions (accessed on 21 October 2014). 296 O’Brien, International Law, (2001), 398. Also in O’Connell, LOS, Vol-I, (1970), 476. 297 UN, Baselines: An Examination, (1989), Appendix I, 47. 298 Churchill and Lowe, LOS, (1999), 38-39. 299 UN, Baselines: An Examination, (1989), 18.
61 Figure-3 Straight Baseline Situations
Norway employed this system of baselines consistently since 1869 and ICJ found out that other states did not oppose it till dispute before the court.300 The issue of straight baselines came to limelight internationally due to challenging of Royal decree of Norway by UK before the ICJ. UK contended that the choice of baselines by Norway was against international law, could only be applied in case of bay (a line not exceeding 10 miles), applied straight lines arbitrarily by departing from line of the coast which appropriated high seas and shifted burden on Norway to prove their exceptional claim.301
During pleadings of the case, Norway counter argued that waters adjacent to land are its accessory and nonexistence of any particular rule to determine the extent of maritime domain having binding of international law. Norway did not address the other issues agitated by UK.302 ICJ examined the Norwegian coastline and observed303 that it mostly comprised fjords304 and skjaergaard305. The court
300Anglo-Norwegian case, 138. 301 O’Connell, LOS, Vol-I, (1982), 201. 302 Ibid., 201-202. 303 Anglo-Norwegian case, 127. 304 The Norwegian origin word means; ‘A narrow, deep inlet of the sea between high cliffs or steep slopes.” Source: Licker, Dictionary, 128.
62 conceded to the interesting Norwegian argument as against UK that the matter was not an exception to the standard legal principle rather employment of ordinary rules to specific geographical situation.306
The court considered that the main issue to be decided was whether low water mark of mainland should constitute the baseline for measuring the territorial sea or straight lines from skjaergaard.307 Taking into account the specificity of the Norwegian geographical configuration of coast, the court decided that straight lines applied by Norway were in consonance with the international law.308 The court rejected UK‘s pleas for drawing of straight baselines only across the bays and fixing of maximum length of line being 10 miles.309 It appears from the wording of the court decision that ICJ had liberal approach towards the application of straight baselines in view of fisheries interests. Exercising of coastal state authority might have not considered an emergent matter and decision could be in that context. The situation certainly changed with the introduction of other maritime zones particularly the enhancement of Territorial sea limit to 12 NM and EEZ.
State practice on application of straight baselines is mostly inconsistent. It is not uniform on any agreed interpretation of straight baselines and too limited to evolve any general effect of creating new customary international law.310 The general rule had been to draw normal baselines and applying of straight baselines as an exception to facilitate the coastal state as well as to the community of states
305 Skaergaard is a Scandinavian word for a rocky coastline protected by numerous off-lying islands and skerries, where the sea merges with the land via an anastomosing system of fjord-like channels. Source: http://www.skaergaard.org/history.html (accessed on 11 November 2013). 306 Anglo-Norwegian case, 131. 307 Ibid., 129. 308 Ibid., 143. 309 Ibid., 131. 310 Robin R. Churchill, “The Impact of State Practice on the Jurisdictional Framework Contained in the LOS Convention” in Stability and Change in the Law of the Sea: The Role of the LOS Convention, edited by Elferink Alex G. Oude , (Laiden / Boston: Martinus Nijhoff Publishers, 2005), 108. Hereinafter “Churchill, “Impact of State Practice” (2005)”. Also in Tanaka, International LOS, (2012), 50.
63 for certainty of maritime boundaries. The prevention of abus de droit311 of straight baselines applications is corner stone of the principles provided in UNCLOS.
The Coastal State is obliged to publicise charts or list of geographical coordinates and depositing a copy of charts or coordinates with UN Secretary General. The Charts No 2 & 3 in the ensuing pages are examples of coordinates of straight baselines deposited with the UN Secretary-General. These have been selected at random without any relevance to their merits or otherwise.
311 A French term that means, “abuse of right". Source: http://definitions.uslegal.com/a/abus-de- droit/ (accessed on 31 August 2015).
64 Chart 2 - Showing Coordinates of Straight Baselines - Albania312
312 US Department of State (hereinafter “US”), Straight Baselines: Albania, Limits in the Seas (hereinafter “LIS”) No. 7.
65 Chart 3 - Showing Coordinates of Straight Baselines - Thailand313
313 US, Straight Baselines: Thailand, LIS No. 31.
66 Sometimes special charts are published and unless they include accurate details of depths, navigational aids and essential topography and so on, they shall be unsuitable for navigation. The purpose of special charts will, therefore, be to make available all the necessary information. So that other governments are aware of what the baselines are, and so that charting authorities of other nations may if they wish to promulgate the necessary information on their own charts or in Sailing Directions or Notices to Mariners (NOTAMS). It is recommended that the charts be marked ―Not to be used for navigation‖.
The current official status of UNCLOS ratifications314 or accessions, straight baseline legislations, straight baselines and archipelagic lines claimed by the coastal states are shown in Graph-1 below.
Graph-1315
Examination of baselines drawn by states presents an altogether different picture. It appears that the rule has become the reverse of what was intended. In most of the cases states adopted straight baselines as their right in general and employment of normal baselines have become an exception. The Graph-1 amplifies the remarkable increase in adoption of straight baseline method.
314 DOALOS, Law of the Sea Bulletin No. 80, (United Nations: New York, 2013), 1-8. 315 Adapted from Source: UN Table of claims to maritime jurisdiction (as on 15 July 2011) available at http://www.un.org/depts/los/LEGISLATIONANDTREATIES/toc.htm (accessed on 7 March 2013).
67 Evaluation of Anglo-Norwegian Fisheries Case
It has been accepted by writers, international organizations and equally by the states that ICJ emblematic judgment in the Fisheries case was a real breakthrough in maturing the concept of straight baselines. Despite the fact that law on straight baselines has been formulated in the TSC and UNCLOS, yet corroborative value of the decision cannot be obviated. The Norwegian coastal conditions are depicted in Figure-4 below for clarity;
Figure-4316 (emphasis added)
Much has been written by the scholars for and against different dimensions of the judgment including dissenting opinions of the judges. Colombos opines that; ―No exaggerated importance should be given to the court‘s findings. It cannot be held that it created precedent since it dealt with unique geographical configurations of a coast which –as the court repeatedly said—was exceptional‖.317 About the status of judicial decisions, the Statute of the ICJ states that in determining the rules of law these are merely subsidiary means.318 Jenks takes a very strong view against this judgment suggesting that states need to change such judicial decisions through their international practice by law-breaking, if not through violence. He
316 Source: http://myuniversities.wordpress.com/2013/10/24/baselines/ (accessed on 6 March 2013). 317 Colombos, LOS, (1967), 177. 318 ICJ Statute, Article 38(1).
68 considers that having recourse to the Court is obviously a barrier to progress.319 He ridicules the ICJ judgment in fisheries case and calls the international law primitive.320
The judge Hsu Mo of this case said that low tide mark formula was ―a general rule‖.321 The judge McNair said that low water mark formula had been supported by ―an overwhelming consensus of opinion amongst the maritime states‖.322 The Judge Read remarked that Coast-Line Rule had been ―an established rule of international law.‖323 Contrary to this, international courts and tribunals have been developing special rules independently of State practice.324 In practice the international courts and tribunals have exhibited ‗judicial creativity‘ by developing special rules independent of state practice usually called judge made law.325
The decision has many dimensions which need reconciliation and harmonious reading as it demands evaluation in entirety. Discussions on the various dimensions individually would not furnish the legal lessons the way court might have intended. It is agreeable that the decision was declaratory in nature from the aspect of a contention between Norway and UK on a maritime legal issue. The wording of the judgment reflects that it was greatly influenced by the peculiarity associated with the Norwegian coastline. It is also true that the court provided a substantive decision with mostly subjective conditions without resorting to strictly technical and procedural aspects pertaining to the drawing of straight baselines.
On critical examination of the judgment, it can be observed that primarily the
319 Clarence Wilfred Jenks, The Prospects of International Adjudication, (London: Stevens and Sons, 1964), 261. 320 Ibid., 237. 321 Anglo-Norwegian case, Separate Opinion of Judge Hsu Mo at 154. 322 Ibid., Dissenting Opinion of Sir Arnold McNair at 161. 323 Ibid., Dissenting Opinion of Judge J. E. Read at 187. 324 Churchill and Lowe, LOS, (1999), 185. 325 Ibid. Also in Yoshifumi Tanaka, Predictability and Flexibility in the Law of Maritime Delimitation, (North America: Hart Publishing, 2006), 325.
69 court‘s emphasis had been on the subject issue for decision. In that area the court has taken the deep cognizance of geographical configuration of the Norwegian coast being the necessity for the verdict of court. In addition, the court discussed the national considerations of the coastal states, consistency in state practice and opposability, general acceptance by states; international consideration of the application of straight baselines system; mixed national and international issues. In fact the statute of ICJ provides that in the absence of any convention or treaty on a point of dispute the ICJ can apply ―the general principles of law recognized by the civilized states‖.326 The object is to contribute in the progressive development of international law.
The Statue of ICJ prohibits the precedent value of the ICJ decisions being only binding on the disputing parties.327 The court while deciding the case on merits declared by ten votes to two that; ―the method employed for the delimitation of the fisheries zone by the Royal Norwegian Decree of July 12th, 1935, is not contrary to international law‖.328 The court clarified that skaergaard form part of the mainland for employing straight baselines.
The option of drawing straight baselines cannot be exercised by the states arbitrarily and without taking geographical realities into account. The prescription played a pivotal role and the court legitimized329 the Norwegian maritime decree announced about 100 years earlier having a persistent claim without protest from community of states. Due to the absence of protest by the states it was not opposable against Norway and was enforceable against every state. Commenting upon the impinging of Norway due to specific economic interests involved, the court considered and acknowledged that; ―economic interests peculiar to a region, the reality and importance of which are clearly evidenced by a long usage‖.330
326 ICJ Statute, Article 38. 327 Ibid., Article 59. 328 Anglo-Norwegian case, 143. 329 Ibid., 138. 330 Ibid., 133.
70
The continuity of Norwegian government practice in drawing of straight baselines and acquiescence on part of other states amplified the concept of opposability. The court elaborated the two concepts; ‗persistent objector‘ and acquiescence, with their legal bindings either on emerging of special custom or general customary rule of law. Coming over specifically to the litigants‘ stance about the maximum length of straight baseline, the court declared; ―In any event the ten-mile rule would appear to be inapplicable as against Norway inasmuch as she has always opposed any attempt to apply it to the Norwegian coast‖.331
The international aspect of judgment had been more thought provoking as the decision could not only stay as a verdict between two states or simply a piece of judicial law making. In reality the decision elucidated a number of general principles which withstood the test of time and ultimately were codified in the form of 1958 TSC. With a little addition the regime of straight baselines created by this decision hailed into UNCLOS. Nonetheless, the Court had legitimised332 LTE, for employing baselines to and from, irrespective of any installation on them or not. That condition had been modified in both; TSC and UNCLOS. Despite difference of opinion on the judgment, it is an undeniable fact that for every discussion on straight baselines, Anglo-Norwegian case is a natural starting point. The set of international principles enshrined in the verdict are discussed in the ensuing paragraphs.
First of all it was asserted that drawing of straight baselines as method is permissible in certain coastal configurations but has an international angle as well. This means this method of baselines is permissible but subject to restrictions of international community rights. It does not depend on capricious discretion of the individual coastal state. At the same time in practice this international restriction could not prevent states from adopting flexible unilateral choice of straight baselines. The court pronounced all the key elements like
331 Anglo-Norwegian case, 131. 332 Ibid., 133 and 144.
71 ―deeply indented‖ and ―cut into‖, presence of fringing islands, general direction of coast, using straight baselines in reasonable manner which still remains the primary criteria of straight baseline application. The decision confirmed the general principles already in vogue, the example; ―it is the low-water mark as opposed to the high-water mark, […..], which has generally been adopted in the practice of states.‖333
The court‘s eliciting of straight baselines‘ subjective principles is appreciable but these terms were devoid of any practical precision which had been picked almost verbatim and dovetailed in the TSC and then into UNCLOS. It does not mean that the decision provides total elasticity in the choosing of this method. Again like most other principles of international law the good faith and due regard doctrine are the broad guidelines and standards for the code of conduct. Another new regime came into being due to the permission of straight baselines system. The waters on the landward side between the coast and straight baselines had a new legal status; these were internal waters instead of territorial waters.334 In the past internal waters comprised only; the rivers, estuaries, lakes and some of the deep bays. The right of innocent passage was kept intact in those areas of internal waters where this right was available before the use of straight baselines.335
In case of Norway the waters enclosed were mostly non-navigable.336 Prior to these conventions, ILC draft Article 5, of which Article 4 of the TSC is prototype copy, had been a substantive replica of Anglo-Norwegian case decision. The ILC interpreted the court‘s decision as a judicial legislation ―expressing the law in force‖.337 The imprecision in the different terms used was prevalent in the original decision which is still reigning supreme as a problematic area.
333 Anglo-Norwegian case, 128. 334 ILC Yearbook 1956, Vol-II, para 45 at 9. 335 ILC Yearbook 1955, Vol-I, para 87 at 99. 336 Ibid., para 89 at 99. 337 ILC Yearbook 1956, Vol-II, 267.
72
Objection had been raised about the less time of fifty days taken by the court in arriving at a decision comparing the voluminous pleadings and lengthy proceedings including long oral arguments.338 Reisman categorically refuted that ICJ decision in fisheries case was about straight baselines rather it was regarding provision of exclusive control over fishing to Norway being important to locals. He called the judgment a precursor of EEZ or fishery zone.339
Westerman contends that entering straight baselines system into the coastal jurisdiction for expansion method had been pursued since 1951 whereas the expansionists had lost in 1930.340 Lauterpacht places this judgment in the high ranking of ICJ decisions and expresses; ―[.....] Inasmuch as it may create, with some, the impression of a daring piece of judicial legislation in sphere of the law of the sea [.....]‖.341
About the citation of dissenting opinion, D'Amato expresses that it is not legal for any scholar the quoting of long passages from such opinions and calls this practice dangerous and misleading. He contends that court reaches an organized and written decision, by the majority opinion, being aware of dissenting opinion. The dissents can amplify the majority opinion or interpretation however, they may appear disjointed polemics when cited out of context.342 D'Amato added that in international law, the dissenting opinions of courts carry less weight. He advises the scholars to refrain from citing the dissents merely because they are considered more persuasive comparing the majority opinions.343
The decision of ICJ in Anglo-Norwegian fisheries case has certainly contributed
338 Manley O. Hudson, The Thirtieth Year of the World Court, 46 AJIL 22 (1952), at 25-26. 339 Gayl S. Westerman, “Straight Baselines in International Law: A Call for Reconsideration”, 82 Am. Soc’y Intl L. Proc. 260 (1988), 260-261. Hereinafter “Westerman, “Straight Baselines”, (1988)”. 340 Ibid., 261. 341 Elihu Lauterpacht Ed., International Law: Collected Papers, Vol-3, (Britain: Cambridge University Press, 1977), 213. 342 Anthony D'Amato, "The Concept of Special Custom in International Law", 63 AJIL 211-223 (1969) at 4. Hereinafter “D'Amato, "Concept of Special Custom, (1969)”. 343 Ibid., 4.
73 to the international law in its progressive development. Similarly the ICJ in Albania v. UK344 while deciding on merit of the case also elucidated the unabridged regime of passage through the international straits. In the Anglo- Norwegian case the court did not act ‗ex aequo et bono‘345 in terms of Article 38(2) of ICJ Statute rather proceeded within the limits prescribed for its jurisdiction. In Qatar v. Bahrain case, ICJ in the furtherance of Article 7 of UNCLOS, took a strict view of the geographical conditions and forbade Bahrain from employing straight baseline system.346 The judgment in Anglo-Norwegian case is placed as Appendix-III to this thesis.
The arbitral award on Bangladesh / India maritime delimitation of territorial sea, EEZ and continental shelf established under UNCLOS is the most recent award. The Tribunal took into account the basepoints used by both the states in terms of Article 7 of UNCLOS. The Tribunal disagreed on the criteria for baselines adopted by both the states. The Tribunal not only delimited the above said three zones but also the outer continental shelf in advance of acceptance of extension claim before CLCS.347
Anglo-Norwegian case is truly a mother of ICJ, ITLOS cases and arbitral awards on straight baselines. A large number of judgments have been delivered on disputes over maritime boundaries whereby baselines have come up as starting point. These cases include; North-Sea Continental Shelf (1969), UK / Iceland, Fisheries Jurisdiction (1974), UK / Northern Ireland / France, Delimitation of Continental Shelf (1977), Germany / Denmark / Netherland, Greece / Turkey, Aegean Sea Continental Shelf (1978), Tunisia / Libya, Continental Shelf (1982), US / Canada, Gulf of Maine (1984), Libya / Malta, Continental Shelf (1985), Guinea / Guinea-
344 Corfu Channel case, Judgment, ICJ Reports 1949, p. 4 at 36. 345 According to what is just and good. The phrase refers to the way in which an international tribunal can base its decision not upon conventional law but on what is just and fair to the parties before it. Source: P. Ramanatha Aiyar eds., Advanced Law Lexicon, Vol-2 D-I (India: Wadhwa and Company Nagpur, 2005), 1676. 346 Qatar/Bahrain Case, Merits, 2001 ICJ 40, Para 214-215 at 103. 347 PCA, The Bay of Bengal Maritime Boundary Arbitration, Bangladesh v. India (7th July 2014), 57-75.
74 Bissau, Delimitation of Maritime Boundary (1986), Canada / France, Delimitation of Maritime Areas (1992), El Salvador / Honduras, Nicaragua Intervening (1992), Denmark / Norway, Maritime Delimitation (1993), Eritrea / Yemen, Maritime Delimitation (2001), Qatar / Bahrain, Maritime Delimitation (2001), Romania / Ukraine, Maritime Delimitation (2009), Cameroon / Nigeria, Land and Maritime Boundary (2010), Barbados / Trinidad / Tobago, Arbitral Award (2006), Guyana / Suriname, Arbitral Award (2014), Chile / Peru, Maritime Dispute, (2014) and Bangladesh / India, Arbitral Award (2014).
The analysis of all these cases reveals that the ICJ as a judicial institution has not deviated from the spirit of Anglo-Norwegian case judgment and none of the cases have negated the principles elucidated in it. The decisions in these subsequent cases have pronounced the judgments in the furtherance of the object enshrined in the landmark judgment of 1951. The examination of all the cases suggests that they are interwoven in a way that subsequent case mentioned the principles expressed in the predecessor court verdicts.
Methodology of Employing Straight Baselines under UNCLOS
Article 7 of UNCLOS determines the geographical criteria to be followed while employing straight baselines on the coasts which do not fall into the conditions for employment of normal baselines in terms of Article 5 of UNCLOS. Article 7(1) reads as under;
1. In localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured.
The language of Article 4 of TSC is almost identical to Article 7 with only exception of the addition of Article 7(2). The legal examination of Article 7, the full text is at appendix-IV, unfolds that it comprises four sets of rules on straight baseline delineation. First set furnishes some conditions which are determinative
75 or confirmatory in nature. These specific terms like deeply indented and cut into coast, presence of fringe of islands, highly unstable coast and particular economic interests involved. These phrases provide a litmus for confirmatory test whether state qualifies for this system of baseline or otherwise. To be more specific, the determinants for straight baselines boil down to two primary conditions as qualifiers; either the coast has deep indentations or coast is fringed with islands. The second set is the permissive; on positive report of first set, the state is permitted to go for straight baselines by selecting appropriate base-points for drawing straight baselines. The third set comprises prohibition rules or provisos; no selection of base-points from LTE, in general, no departure from general coastal direction and non-appliance of lines which may cut off territorial sea of another state from high seas or EEZ. The fourth set is qualitative or directive in nature; fringes of islands should be in immediate vicinity of coast and sufficient close linkage of sea enclosed between the straight lines and landmass.
The flow chart in Figure-5 amplifies the self explanatory methodology for employing straight baselines;
76 Figure-5 (author‘s own idea)
Flow Chart – Methodology for Employment of Straight Baselines
State As per Article 305 of UNCLOS
Landlocked Coastal Archipelago
No baseline May Draw Archipelagic lines, straight baselines, closing lines or mix of all lines, if applicable. Normal Baseline on smooth Straight Baseline Closing Line in case of coastlines measuring from (Unsmooth coastal River Mouths, Bays, low-water line configurations) estuaries etc. Scrutiny of Criteria
Coast Deeply Indented May Draw Straight Baselines and cut into
No – Next Criteria
Coast Fringed with Islands in immediate May Draw Straight Baselines vicinity Principles to Fallow
No Employment of Straight Straight Baselines do No appreciable departure Areas within Lines baselines from low-tide not cut off territorial Selection of Appropriate from general direction of the sufficiently closely linked elevations unless lighthouses / sea of other state from Basepoints coast to the land domain installations permanently above Highseas or EEZ sea-level Exception = General International recognition
77 Nonetheless, it is now generally admitted that terminologies used in straight baseline article are neither clear in meaning nor objective in criteria. In the absence of this support what may be the recourse to interpret these terms before analysing the employment of straight baselines? This is particularly important when primarily coastal state itself is to judge the existence of coastal conditions for applying straight baseline system. Notwithstanding coastal state discretion, such a system always has an international aspect.348 Apparently to-date this has not proved an effective check on unfounded choice of straight baselines.
Conclusion
The baselines occupy same place in the ocean governance as the heart covets in the human body. Baseline may be called a fulcrum around which the whole maritime zones‘ regime revolves or a foundation stone of the edifice of maritime delimitations. The coastal states are not free to choose the type of baseline they wish rather it is the coastal configuration of a state that is central to the choice of baseline. UNCLOS does not obligate the coastal state to apply straight baseline principle even though she qualifies. On normal coastal configurations the baseline follows along the contours and curvatures of the coast. The Anglo- Norwegian Fisheries case merited the Norwegian coast for straight baseline application due to irregular coastal conditions through judicial legitimacy. The cloak afforded to straight baselines system by the landmark verdict of ICJ in fact opened new vistas of maritime expansionism. This was certainly, not desired by the court. The decision that had struck a balance between national and international aspects seems to be the vanishing point. The national straight baseline claims are thriving with least considerations for the international element. The ICJ, being not comprised the technical experts, did not spell out specific criteria for terms and phrases used. The normal baselines are negligibly problematic comparing straight baselines. It is due to inherent capacity of straight lines to appropriate more expanse of water pushing the national claims
348 Anglo-Norwegian case, 132.
78 seaward. The multitude of work done on straight baselines particularly post ICJ decision is evidence of its significant role. No technically precise and clear parameters could be evolved even during negotiations on TSC and UNCLOS. The subsequent decisions by the ICJ and tribunals on boundary disputes mostly reiterated on the straight baselines criteria enunciated in the 1951 ICJ judgment.
79 CHAPTER 4
ANALYTICAL EVALUATION OF STRAIGHT BASELINE DOCTRINE - FACTORS BEHIND EXCESSIVE CLAIMS
Analytical Evaluation of Straight Baseline Doctrine
In smooth geographical configurations, the default baseline for the states is normal baseline. The situations may exist on the coasts of states where due to number of unusual factors the drawing of default baselines may not be feasible, practicable or convenient. To cater these complexities both; legal and geographical, international law provides an option for employing straight baselines. The coastal state is the sole authority to determine where to draw straight baselines for the manifestation of its sovereignty from national perspective. At the same time the international aspect subjects this prerogative to other states‘ right to object or protest the veracity of such system of baseline. Norway succeeded against UK on both; national and international front, on its northern coast, but could not substantiate its claim on eastern Greenland against Denmark. In a number of cases the appropriation of expanse of water has subjugated the general purpose of Article 7 of UNCLOS.
Straight baselines occupy a pivotal place on the various regimes of sea whether concerning claims, delimitations, jurisdictions, rights or responsibilities. These lines determine the extent of maritime boundaries of coastal states landward and seaward. The straight baseline system impinges upon different maritime zone regimes of coastal state; absolute sovereignty (internal waters), sovereignty (territorial sea) and sovereign rights (EEZ/continental shelf) with international community rights (high seas and Area).
The evaluation of baseline system enunciated in UNCLOS raises many questions with no or a few answers. Apart from not fulfilling the indentation and cut into test, a single straight line segment has been commonly drawn by most of states capriciously by joining two base points leaving intermediary base points. Deviating state practice manifests that it is very often inconsistent with Article 7.
80 Non-existence of standard guidelines and precise criteria has proved it absolutely difficult to agree with any practice to be accepted as coherent with general international law principle. Evidently there is tendency in state practice to obviate and set aside the basic requirements enumerated in Article 7. Karaska and Pedrozo presenting US point of view contend that the most abused provision of UNCLOS is its Article 7 relating to straight baselines. Over 70 states applied the system of straight baselines and majority does not meet the conditions inconsonance with the objective of UNCLOS Article 7.349 Reisman and Westerman, while criticising on the acquiescence of states over foul straight baselines call it conspiracy of silence by the states and contend that most of the states are following the policy; ‗I won‘t challenge your baselines if you do not challenge mine‘350
In the absence of any standard legal position for states, to follow in general, has led to wide ranging discretionary powers to the states for adopting straight baselines.351 Most of the states have resorted to straight baselines and that too very liberally. The expressions used in Article 7 relating to qualification or prohibition on applying straight baseline system are vague and imprecise. At the same time UNCLOS is such a deep knitted document that it cannot be opened for discussion or easily amended. In this case it is most likely to catapult the whole structure into fragmentation.
The principles of good faith, object and purpose of Article 7 are not observed vis-à-vis individual interests of coastal states. Vagueness and imprecision paved the way for flexible approach by coastal states but vested interests proved the highway. The international court decisions, awards by the arbitral tribunals and UN studies could not thwart the situation. The state practice, objections by other states and intellectual contributions of publicists could also not arrest violations
349 James Kraska and Raul Pedrozo, International Maritime Security Law, (Netherland: Koninklijke Brill, 2013), 246. 350 W. M. Reisman & G. S. Westerman, Straight Baselines in Maritime Boundary Delimitation, (New York: St. Martin’s Press, 1992), 190. 351 Kriangsak Kittichaisaree, The Law of the Sea and Maritime Boundary Delimitation in South-East Asia, (Singapore: Oxford University Press, 1987), 4.
81 for agreeable mathematical precision. US contributions on straight baselines issue, single-handedly, deserve a degree of appreciation. She analysed various countries‘ straight baselines from technical and legal point of view and registered their protests. Certainly it proved an irking element if not a stumbling block against the unjustified straight baseline situations.
US study was an endeavour to provide guidelines on straight baselines. Nonetheless, it could not provide standard guidelines due to number of reasons. Few reasons include; US not being party to UNCLOS, antagonist sentiments against US, considering US study as dictation rather than a helpline. The guidelines do not have standing and status as ―benchmark‖ to test the straight baselines‘ legality as wrong or right, as admitted by the study itself.352 A glance at Table-1 shows an extraordinary increase in the trend of adopting straight baseline system of coastal states since 1951 Anglo-Norwegian judgment.353
352 US, Developing Standard Guidelines for Evaluating Straight Baselines. LIS No.106, 3. 353 Table compiled from US, LIS Nos. 3, 4, 5, 8, 13, 14, 15, 19, 20, 21, 22, 23, 28, 29, 30, 31, 32, 33, 35, 36, 37, 40, 41, 43, 44, 47, 48, 51, 52, 53, 54, 76, 80, 82, 99, 103, 107, 111, 112, 113, 118 & 120. Also DOALOS, Law of the Sea Bulletin No. 71, (United Nations: New York, 2009), 26. ILA, Committee on Baselines, (2014), Para 36.
82 Table-1
The trend portrays a gradual increase in each phase because every phase would also include preceding period claims in total calculation. A significant increase in the claims of straight baselines post 1961 can be viewed from the aforementioned comparison. Expansive claims are likely to continue, rather increase with the passage of time due to more awareness about the sea potentials, technological advancements and depletion of resources on land. Vagueness in treaty terms may multiply flexibility and excessive claims for optimum advantage by the coastal states. Establishing of straight baseline system would do no service to the coastal states or international community unless it is accompanied by a process for changing national and international mind-set.
The purpose of Article 7 is clearly simplification of complex coastal configurations to avoid scattered pockets and problematic situations at outer limits of maritime zones. The system is in no way meant to appropriate more
83 sea. In practice the majority of states have delineated straight baselines which are expansive in nature. This grey area of imprecision in the procedural part of straight baselines is not a mystery. It was known during the negotiation of UNCLOS and at the time of conclusion of this convention. The danger of the misuse of fluid criteria on straight baseline system had been perceived.
In 1958, during negotiations on Territorial sea, the Japanese delegation showed their concern over parameters of straight baselines and bays‘. The delegation proposed the submitting of these disputes to ICJ in the absence of any agreement on any other method between the disputants.354 Later the Japanese delegation withdrew its proposal for not gaining support.355 Figure-6 portrays the wide ranging discretion by a state in the same coastal configuration for the selection of base-points and construction of straight baselines.
354UNCLOS-I, Vol-III, 246. 355 Ibid., 198.
84 Figure-6356 (Edited and emphasis added) Flexibility in the Options of Constructing Straight Baselines
Option 5 in the above fig may be called the narrowest approach whereas option 1, the most liberal approach for delineation of straight baselines. One publicist, at the time when UNCLOS was opened for signature, apprehended and commented about Article 7 that; ―the imprecise language would allow any coastal country, anywhere in the world, to draw straight baselines along its coast.‖357
The ICJ Judge, McNair, while writing his dissenting opinion during the Anglo- Norwegian case declared that claiming of territorial waters provided right as well as obligations on the coastal states. He opined; ―The possession of this territory is not optional, not dependent upon the will of the State, but compulsory.‖358 The drafters of UNCLOS had no intention to make the adoption of straight baselines system compulsory despite fulfilling the prerequisites enumerated in
356 International Hydrographic Bureau, A Manual on Technical Aspects of the United Nations Convention on the Law of the Sea-1982, Special Publication No. 51, 5th Ed, (2012), Figure 2.11. 357 J.R.V. Prescott, The Maritime Political Boundaries of the World, (London / New York: Methuen, 1985), 64. 358 Anglo-Norwegian case, Dissenting Opinion of Sir Arnold McNair, at 160.
85 Article 7(1). The article purposely uses the phrase ―straight baselines may be employed‖ providing discretion to the coastal states. It means if a state fulfils the conditions of Article 7 and is willing she may apply this method or may decline to do so. The unique example is US for not applying this system to her coasts inspite of eligibility as a national policy. Contrarily, if a coastal state does not meet these conditions she is legally debarred from employing straight baselines. Normally coastal states which meet the requirement prefer to employ straight baselines because it is an advantageous option in many respects.
Reisman notes that while deciding on delimitation of maritime boundaries the courts and tribunals do not criticize the exorbitant straight baselines rather have been ignoring them.359 Reisman & Westerman posit that ―the regime of straight baselines must not be used to circumvent other established rules of international law‖.360
An interesting question arises whether straight baselines drawn by a coastal state by circumventing the principles laid down in Article 7 would remain illegal irrespective of the passage of long-time? Or the long usage provides entitlement through principle of prescription? The issue may have similarity with the status of a state illegally occupied by another state. The occupied state will remain as a lawful entity as a state in the eye of international law despite its annexation by the occupying state.361 It is considered logical that illegal maritime claims would continue to be illegal irrespective of passage of long time. Nevertheless, the states showing acquiescence or silence may not oppose such claim afterward.
359 W. Michael Reisman, "Eritrea-Yemen Arbitration (Award, Phase II: Maritime Delimitation)", 94 AJIL 721 (2000) at 732. Hereinafter “Reisman, "Eritrea-Yemen Arbitration", (2000)”. 360 W. M. Reisman & G. S. Westerman, Straight Baselines in Maritime Boundary Delimitation, (New York: St. Martin’s Press, 1992), 102. Hereinafter “Reisman & Westerman, Straight Baselines, (1992)” 361 Article 55 of Hague Regulations-IV of 1907. Also in John Norton Moore, The Arab-Israeli Conflict, Vol-IV, Part-I, (USA: Princeton University Press, 1991), 215. Also in Shaw, International Law, (2008), Note 3, 61.
86 How Can Uniformity be Reached on Straight Baseline Principles in Article 7 of UNCLOS?
Dynamism of laws always banks on amendment in the laws to keep pace with the change in circumstances. VCLT which is umbrella convention on treaties provides amendment procedure for the treaties and conventions in general. The primary mechanism that is available in every contract between the parties and stands true for state parties to conventions is that; ―a treaty may be amended by agreement between the parties.362 In most of the treaties, the amendment mechanism is embedded in the convention itself keeping in view the object and purpose of the treaty.
UNCLOS sets out its own procedure for amendment or revision, dedicatedly considered during UNCLOS-III. The UN Secretary General offered his three pronged formulae;
Formula A; provided no revision or amendment provision in the UNCLOS, thereby subjecting UNCLOS to procedures contained in Articles 39 and 40 of VCLT;
Formula B; prescribed time, after entry into force of UNCLOS, for any state party to request for revision;
Formula C; proposed amendment in the technical annexes or appendices by a simplified procedure.363 Note to Formula C hints at the simpler procedure in the form of amendment through annexes (technical), schedule, regulations etc. provided in a number of conventions concluded under the aegis of UN.
Broad mechanism of UNCLOS contains provisions like Article 155,364 311365
362 VCLT, Article 39. 363 UNCLOS-III (Official Record), Vol-VI, Draft Alternative Texts of the Preamble and Final Clauses Prepared by the Secretary-General, Doc.A/CONF.62/L.13, 125-129. 364 Concerning seabed activities in accordance with part XI. 365 Modifications or suspension through mutual consent of parties subject to certain conditions.
87 and 312 through 316 of UNCLOS for amendment or revision, modification or review depending on the specific purpose.
Historically idea remained debatable amongst writers that treaty lasts till circumstances remained the same for which it was concluded. The rule was incorporated in Article 62 of VCLT. The striking factor is that UNCLOS does not provide any procedure for termination of this convention at all. Two main categories of procedures have been enshrined in Article 312 and 313 for general amendments in the UNCLOS and would remain the focus.
In TSC, UN General Assembly per se could call the amendment conference. Comparatively easy and simple procedure for an amendment in UNCLOS has been stipulated in its Article 313. The UN secretariat may circulate proposed amendment to all states. The amendment proposed is considered adopted after twelve months of the date of circulation if it finds no objection from state parties. The issue of straight baselines is very technical and controversial in nature. There is strong likelihood that states would not accept criteria proposed by any one or some states.
The analysis of amendment procedures provided in Articles 312 and 313 of UNCLOS divulges clearly that these may not work for thorny issue like straight baselines. The state parties remain at the helm of affairs for any amendment in UNCLOS. As is evident from the nature of straight baselines issue the mechanism given in Article 312 is apparently considered appropriate for amendment in Article 7. Nevertheless in this process the amendment would be only applicable to the state parties to the amendment.366
A close examination of Article 312 leaves no doubt in concluding that the moratorium of 10 years for proposing amendments in UNCLOS, after its entry into force, was purposeful. The foremost purpose in the mind of drafters could be to avoid early amendments for keeping convention composed. Being bounded
366 VCLT, Article 40(4).
88 by compromises the amendment controversy at early stage of the convention could lead to its fragmentation or put a halt to its universal ratifications. Article 313 primarily meant for simple amendments could not harm the convention. This article requires consensus of parties, not easy to achieve. Overall the methods available in the UNCLOS for amendments of general nature are considered a practical nullity. During the research not a single request from any party to UNCLOS could be traced for amendment in terms of Article 313. It is congruous to mention that UNCLOS-III remained a political battlefield for about one decade which could not offer clarity to some provisions of UNCLOS due to compromising nature of this convention. The international judicial decisions post UNCLOS ratification are either restricting to the disputing parties‘ peculiar situations or restatement of straight baselines principles in Anglo-Norwegian case.
In order to have insight on the issue of amendment in Article 7 of UNCLOS or otherwise, 200 persons relating to maritime field were approached for this survey poll and response was received from 145 persons. These parsons included; graduates from International Maritime Law Institute, Malta, through e-mail, experts and scholars from different countries whom the author met during various seminars/conferences/negotiations.367 They were asked following four questions to give their choice on anyone;
- Is there no need to amend Article 7 following wait and see policy?
- Should Article 7 of UNCLOS be undone for renegotiation?
- Should Article 7 on straight baselines be amended through procedure provided in Articles 312 and 313 of UNCLOS?
367 Participated as Observer in ‘USCENTCOM Multilateral PSI exercise LEADING EDGE’ from 25 to 28 Jan 2010 at UAE. Attended Symposium on ‘Irregular Warfare and Armed Groups: Threats and Opportunities’ on 21 and 22 June 2011 at DILLS, Newport Rohde Island. Participated as Member Pakistan Negotiation Team on ‘4th Convention of Conventional Weapons Review at Geneva’, Switzerland from 14 to 25 November 2011. Attended ‘International Symposium on Security and Military Law’ from 22 to 24 Oct 13 at South Korea.
89 - Should an agreement under Article 7 be reached on the pattern of 1994 Implementation agreement on Area, 1995 Agreement regulating High Seas Fisheries and UNESCO Convention on the Protection of the Underwater Cultural Heritage 1972 through Article 311(2) of UNCLOS?
The response gathered during survey opinion is reflected in Graph-2 below;
Graph-2
From the survey poll results it is evident that amendment in Article 7 is although an option but not a conducive option. It may lead to disintegration of state parties as well as fragmentation of UNCLOS instead of uniformity of rules on straight baselines. Reaching on an agreement under the umbrella of UNCLOS may be a most viable option. The agreement on straight baselines may be modelled on 1994 Implementation Agreement relating to the regime of Area and 1995 Agreement concerning international fisheries. Conclusion of ‗UNESCO Convention on the Protection of the Underwater Cultural Heritage 1972‘ is another example of such agreement. Similarly to regulate fishing in Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) area, Australia during 21st meeting proposed amendment in Article 73(2) of UNCLOS in the furtherance of Article 311(3).368 Agreements on straight baselines under
368 Commission for the Conservation of Antarctic Marine Living Resources, Report of the Twenty- First Meeting of the Commission, (Doc. CCAMLR-XXI; 2002), para 8.62.
90 these arrangements, even if proved unsuccessful, may not affect adversely to the existing substantive provision on straight baselines.
The famous maritime law figure, Anderson through an e-mail message to author on November 20, 2014 communicated that the idea of formally amending some part of UNCLOS has always met with much opposition. According to him straight baselines disputes could be referred to the court or tribunal under Part XV of convention for a binding ruling or some other agreement.369 Natalie considers that the system of dispute resolution provided in the UNCLOS is very complex.370 Ntovas by an e-mail to the author on November 18, 2014 shared that there is general understanding in the current bibliography that amendment provisions of UNCLOS will be hardly ever used for various reasons; state practice and adjudication, when necessary, nevertheless can clarify the applicable rules.371 The famous judge McNair said; ‗treaty revision is a matter for politics and diplomacy‘.372 It is considered very much true for a treaty like UNCLOS whose negotiation history is witness to such politics and diplomacy.
The aforesaid discussion leads to the view that the apposite way to bring clarity and uniformity to the straight baselines principles is by forming an agreement by the states in the spirit of Article 7 of UNCLOS under the umbrella of Article 311(3) of UNCLOS.
Factors Behind Resorting Excessive Straight Baseline Claims
The choice of the type of baseline, being the starting point for claiming various maritime zones, plays a pivotal role in shaping the maritime claims. The issue of straight baselines is not simple. The straight baselines meant for irregular coastal configurations have been adopted by the states with regular coasts for obvious advantage of maritime expansionism. Vagueness of basic terms on straight
369 Mr. David H. Anderson is former Judge of ITLOS from 1996-2005. 370 Natalie Klein, Dispute Settlement in the UN Convention on the Law of the Sea, (New York: Cambridge University Press, 2004), 3. 371 Dr. Alexandros X.M. Ntovas is lecturer at University of Southampton, London. 372 Baron A D McNair, The Law of Treaties, (Oxford: Clarendon Press, 1961), 534.
91 baselines embodied in Article 7 of UNCLOS, lack of their standard definitions and absence of arithmetical precision contribute to the problem. It encourages the states to go for liberal interpretations to possess more area of the sea and resources too. The state practice being not uniformed, due to their vested interests, adds to the severity of issue. It is significant to establish points on the coast for determining the outer limits of maritime zones. The maritime boundary delimitations involve many intricacies unlike land boundary demarcations
Possessiveness is human nature irrespective of practical utility of the things. There may be numerous factors behind straight baseline claims and covering all of them may not be possible on the canvas of this research. Territory claims may be tinged in history, patriotism and traditions apart from sheer security or solidarity of a state. Some salient factors discussed are; Geographical, Economic, Strategic, Political and Psychological. In most of the situations all or many of these factors are inter-related for a consolidated effect.
Geographical
The word ‗geography‘ means, ―The science that deals with the earth and its life, especially the description of land, sea, air [.....]‖.373 Land is prerequisite for coastal claims as it is the land which dominates the sea. About the vitality of geography Napoleon observed, ―The policy of a state lies in its geography‖.374 Geography of the coast is a striking element in claiming the sea frontiers. It is the type of coast which determines the nature of claims to be made in the sea. Geographical importance may depend amongst other things on; location, economic incentive, security considerations and strategic objectives.
373 Mark D. Licker, Dictionary of Earth Science, 2nd Ed., (USA: McGraw-Hill Companies, Inc., 2003), ix. Hereinafter “Licker, Dictionary,” 374 Vijay Sakhuja, Asian Maritime Power in the 21st Century: Strategic Transactions: China, India and Southeast Asia, (Singapore: Institute of Southeast Asian Studies, 2011), 35.
92 Mahan being naval strategist has referred the ocean as ―a great highway; or better, perhaps, of a wide common [.....]‖.375 Gray and Sloan aver that geography is ―the mother of strategy‖.376 A number of scholars have emphasised upon geographical considerations in the maritime boundary limitations and delimitations. Antunes is of the view that coastal geography is a key factor in maritime delimitation.377 Similarly Charney while discussing the considerations for maritime boundary delimitations notes that primary attention is to be placed on geographical features of the coastline.378 It may be valid to say that there may be a state without coast but there may not be a state without land. Geography of a state is undoubtedly pivotal but it is the coastal geography which may have great impinging on shaping up the maritime claims.
Prescott and Schofield consider that the geographical factors particularly the coastal geography of states is fundamental to maritime boundary delimitation.379 To covet advantageous position and desire of states for excessive maritime jurisdiction is natural. This factor persuaded the coastal states for ultra vires380 claims on account of straight baselines. Generally in the complex coastal geographies, the excessive maritime claims are more vigorously enforced for optimum advantage. The case in point is the looming maritime claims in Asia and particularly in South-Asia mostly through exaggerated straight baselines. The geographical locations are considered the main galvanizing force behind the
375 Alfred Thayer Mahan, The Influence of Sea Power upon History (1660-1783), (Boston: Little, Brown & Company, 1890), 25. 376 Colin S. Gray and Geoffrey Sloan Ed., Geopolitics, Geography and Strategy, (New York: Routledge, 2013), 3. 377 Nuno Sergio Marques Antunes, Towards the Conceptualisation of Maritime Delimitation: Legal and Technical Aspects of a Political Process, (Leiden: Martinus Nijhoff Publishers, 2003), 290. 378 Charney and Alexander, Maritime Boundaries, Vol-I, (1993), xliv. 379 Prescott and Schofield, Maritime Political Boundaries, (2005), 1. 380 Ultra vires is a Latin phrase meaning "beyond the scope of power allowed or granted by a corporate charter or by law". Source: Garner, Black’s Law Dictionary, (1999), 1525.
93 excessive straight baseline claims. In all kind of delimitations, where the measurement is involved, the accuracy of baselines is relevant.381
Economic
The economic factor is amongst the foremost uses of the sea. The oceans have been a great medium of transportation, apart from food source since time immemorial. The ICJ, in Anglo-Norwegian case, treated economic factor as relevant for the drawing of straight baselines382 that in turn enhanced Norwegian coastal area. In the modern era the technological advancements have made it possible for the humans to exploit the riches of the sea. The paramount resources include a variety of fish species, marine mammals, minerals, gas, oil, gravel, sand, tin, gold, pearls etc. The UN report divulges that value of sea resources exploited per annum account for about $7.0 trillion.383 Estimated value of marine minerals generated per year comes to $1.0 trillion.384
Over 90% of fish resources of the sea lie in the EEZ of coastal states.385 Similarly much of the non-living resources of the sea particularly hydrocarbons are present in continental shelf386 equal to the area of EEZ and in some cases upto 350NM. The two types of resources; living and non-living are discussed as follows;
Living Resources
Historically fishing has remained the leading living resource in the sea. Dependence of people on fisheries and other sea species has increased manifold in
381 Jonathan I. Charney et al., Ed., International Maritime Boundaries, Vol-5, (Netherland: Martinus Nijhoff Publishers, 2005), 3391. Hereinafter “Charney, International Maritime Boundaries, Vol-5, (2005)”. 382 Anglo-Norwegian case, 133. 383 UN, Ocean: The Source of Life, United Nations Convention on the Law of the Sea, 20th Anniversary (1982-2002), 5-6. Hereinafter “Ocean: Source of Life”. 384 Ocean: Source of Life, 6. 385 FAO, Code of Conduct for Responsible Fisheries, (UN: 2011), Preface. Hereinafter “FAO 2011”. 386 Ocean: Source of Life, 6.
94 the recent times.387 Globally, 3.0 billion people take about 20 percent of their proteins from fish whereas about 4.9 billion people take 10 percent of this protein.388 Comparing the high seas, EEZs of states are rich in living resources389 that tempt the coastal states to appropriate more sea for exploitation of living resources exclusively. Kenya‘s proposal on EEZ was in-fact the reflection of developing Asian and African countries‘ aspirations and their concerns over exploitation of off-shore fisheries by the foreign vessels.390 EEZ concept reallocated the fisheries rights significantly from international to national.391 ICJ judgment which brought revolution in the baselines system was primarily the consequence of fisheries dispute between Norway and UK.
The living resources extend to all categories of fish including anadromous, catadromous, straddling stocks, highly migratory species, marine mammals, shared and sedentary species on the seabed and in the subsoil.392 Sedentary species in the EEZ may have overlapping control with the continental shelf. The law also provides for the control of sedentary species by coastal states on the extended continental shelf.393 In this manner, the seaward extension of the outer Continental Shelf by excessive straight baselines occupies more area of sea encroaching High Seas.
The coastal states feel more concerned about the control of resources putting aside UNCLOS obligation of determining total allowable fish catch for maximum sustainable yield.394 Moreover, offering the surplus fish beyond coastal states‘ harvestable capacity to other states to harvest.395 In practice one can hardly find
387 Fishery and Aquaculture Statistics, FAO Yearbook 2012, xvii. Hereinafter “FAO 2012”. 388 FAO 2012, xvii. 389 FAO 2011, Preface. 390 Dennis Rumley, Sanjay Chaturvedi and Vijay Sakhuja Ed., Fisheries Exploitation in the Indian Ocean: Threats and Opportunities, (Singapore: Institute of Southeast Asian Studies, 2009), 127. 391 Ibid., 126-127. 392 UNCLOS, Article 61-68&77 (4). 393 Ibid., Article 76(4)-(8) and Article 77(4). 394 Ibid., Article 61(1) & (3). 395 Ibid., Article 62(2).
95 any such arrangement or agreement for sharing of living resources with the landlocked396 and geographically disadvantaged countries of the regions in the spirit of UNCLOS397. The attraction for living resources and exclusive authority vested in coastal states regarding their exploitation encourages the coastal states to appropriate sea through straight baselines. The marine living resources, apart from being protein source, contribute significantly to food security, employment398 and a profitable trade.399
Non Living Resources
The non-living resources like minerals specifically the significance of hydrocarbons in the economic development of the countries still remains on priority. The technological progress has made it possible to tap the hydrocarbons from the deep seabed and other pharmaceutical compounds of the sea. In the present era of globalization, the energy security is not just an economic issue rather a political as well as a military issue for a state.400 Petroleum is also called ‗blood‘ of the industry due to paramount importance of energy for states.
The energy experts unanimously consider that, ―Petroleum remains the principal energy provider among all the available resources in the 21st century‖.401 In order to secure economic sustainability and social development, states go for extended claims in the sea through drawing straight baselines as most of the disputed sea areas are full of gas and oil reserves. Dr. Asif Inam402 in discussion with the author on December 23, 2014, expressed that amongst other
396 UNCLOS, Article 69(1). 397 Ibid., Article 70(1). 398 Approximately 54.8 million people are engaged in fisheries and aquaculture worldwide. Asia alone accounts for over 87% of the world. Source: FAO 2012, 10. 399 International trade in fish products has increased to an all -time high of US$ 217.5 billion. Source: FAO 2012, 3. 400 Myron H. Nordquist, John Norton Moore and Kuen-chen Fu Ed., Recent Developments in the Law of the Sea and China, (Leiden/Boston: Martinus Nijhoff Publishers, 2006), 146. 401 Ibid., 145. 402 Dr. Asif Inam, Director General and Head of Geology & Geophysics Section, National Institute of Oceanography, Pakistan.
96 considerations, the hydrocarbons are one of the major factors behind appropriation of the sea by lodging claims through unfounded straight baselines.
Offshore oil rigs may have multi-pronged advantages for a coastal state. Expansive claims on the basis of straight baselines offer more reach along with economic benefits. At the same time it may have regional and international strategic ramifications particularly when there are controversies on maritime boundary claims. China and USA have emerged as two major maritime players for their row on maritime matters at sea. US have alleged Chinese authorities for declaring their deep water oil rigs as their ―mobile national territory and a strategic weapon‖.403 US have strongly criticized this point of view calling it a mercantilist thinking on the part of Chinese ruling elite.404
Hydrocarbons being a hard cash bring political stability in a state and meet the indigenous requirements as well. The pivotal value of this resource leads to competition of excessive maritime claims amongst the states. The easiest way for the states to acquire sovereignty or sovereign rights on large sea area or to at least confuse the situation by generating conflict can be through excessive straight baselines. With the increased surveys and likely presence of this precious resource is bound to enhance eagerness of the states for appropriation of sovereign areas in the sea.
Strategic
The strategic importance of oceans and seas need no emphasis. This reality has been accepted since olden times. Despite the vastness of the sea compared to land, it is a sensitive domain since the international dimension of any activity at
403 Brian Spegele and Wayne Ma, For China Boss, Deep-Water Rigs Are a ‘Strategic Weapon, Wall Street Journal, (29 August 2012), available at http://www.wsj.com/articles/SB10000872396390444233104577592890738740290 (accessed on 6 June 2015). 404 Martin Murphy, Commentary -Deepwater Oil Rigs as Strategic Weapons, US Naval War College Review, Vol-66, No. 2, (Spring 2013), 110.
97 sea is dominant. Navies are a potent tool of states being guardian of oceanic interests of states both; in peace and war. Gradually the role of naval power has changed significantly from their combatant facet to benign operations and as law enforcement agency. The famous Soviet Admiral Gorshkov said, ―The navy has always been an important instrument of the policy of states, an important aid to diplomacy in peacetime‖.405 Luke observes that an action short of war by naval forces can cause strategic effects never thought before due to complexity of operating environment. He enumerates three factors; change in environment, globalization of maritime commerce and evolutionary impact of international maritime law.406
Naval forces operating primarily for the defence and to watch the national interests of their states are prone to conflicts due to competitive exclusive rights in the sea. It necessitates more than ever having restraints by the states specifically by the major maritime nations to avoid any untoward incident which may catapult to devastating strategic impacts. Holmes is of the opinion that even small coastal states through artful strategy can exploit the geographical assets themselves or can deny the stronger rivals. The strategic guile for the weak states, indeed, is more important.407
The importance of Sea-lines of Communication (SLOCs) from national, regional and international perspectives needs no emphasis. SLOCs are crucial for the states both in peace and war. In as early as 1616, Sir Walter Raleigh posited that, "Whosoever commands the sea commands the trade; whosoever commands the trade commands the riches of the world, and consequently the world.‖408 SLOCs
405 Sergei Georgievich Gorshkov, The Sea Power of the State, (Michigan: Elsevier Science & Technology Book, 1979), 248. 406 Ivan T. Luke, Naval Operations in Peacetime, US Naval War College Review, Vol-66, No 2, (Spring 2013), 49. 407 James R. Holmes, Strategic Features of the South China Sea, US Naval War College Review, Vol-67, No 2, (Spring 2014), 32. 408 Robert Debs Heinl, Dictionary of Military and Naval Quotations, (Maryland: United States Naval Institute, 1966), 288.
98 do not only ensure the flow of national trade but also strategic military interests. The protection of SLOCs necessitates sea control409 by the naval forces. Sea denial410 technique is usually adopted by a comparatively weaker naval power to avert sea control. The recent example of sea denial is 2006 Lebanon War where Hezbollah fired C-802 missile on Israeli navy ship Hanit causing her significant damage. It compelled Israel to withdraw the ship from theatre of operation.411 The weapons and gadgetry would continue to modernize and so the ships carrying them but fundamental theme of naval warfare would remain the same; the military controlling the SLOCs would control the sea and would ultimately control the results of the war.412
The command of the sea is considered a foundational concept of sea power. Command of the sea is essential as economic, political and technological developments have changed, significantly, the nature of the sea power and its influence on the geopolitical dynamics.413 The open and uninterrupted SLOCs are considered the backbone of regional and international shipping activity. The importance of SLOCs has never diminished. Over 90 percent cargo of the globe is transported by sea.414 The issue was not serious when territorial limits of states were generally restricted to 3NM as it did not cover much area in the sea. The appropriation of expanse in the sea, although genuinely, by drawing straight baselines takes into its fold many SLOCs and passage ways crucial to the comity of nations.
409 Sea control is the condition that exists when there is freedom of action to use an area of the sea for one’s own purpose for a period of time and, if necessary, deny its use to an opponent. Source: DCDC, British Maritime Doctrine, Joint Doctrine Publication 0-10, (Swindon: Ministry of Defence, (August 2011), para 220 at 2-10. 410 Sea denial is exercised when one party prevents an adversary from controlling a maritime area without being able to control that area oneself. Source: Ibid., para 224 at 2-11. 411 Benjamin S. Lambeth, Learning From Lebanon: Airpower and Strategy in Israel’s 2006 War against Hezbollah, US Naval War College Review, Vol-65, No 3, (Summer 2012), 88. 412 Source: http://www.globalsecurity.org/military/library/report/1988/LFR.htm (accessed on 11 January 2015). 413 Robert C. Rubel, Command of the Sea: An Old Concept Resurfaces in a New Form, US Naval War College Review, Vol-65, No. 4 (Autumn 2012), 21 414 IMO, International Shipping Facts and Figures – Information Resources on Trade, Safety, Security, Environment, (Maritime Knowledge Centre, 2012), para 2.1.
99 Straight baselines may give a variety of shades of restrictions to the passage of vessels like; internal waters jurisdictions, territorial sea passage on the condition of innocent passage traversing by foreign shipping or EEZ subject to coastal state‘s right of establishing traffic separation schemes. Strategic interests play a vital role in claims by the states. The case in point is the proposal of Ministry of Foreign Affairs presented to the parliament of Russian Federation for the return of the Shikotan and Habomai islands to Japan. It was rejected by the Federation mainly on account of strategic interests.415
Excessive claims through controversial straight baselines may pose potential threats due to vested interests tied with the SLOCs. Claiming expanses through illicit straight baselines by states are inversely proportional to the international community interests. The more the excessive claims by the coastal state, the greater the restrictions on free navigation of ships belonging to international community. The significance of SLOCs is enhanced in sea areas of strategically important straits and choke points. The narrowness of passages demands extra care and caution on the part of vessels while navigating. Any incident in these passageways may converge into suspension or disruption of maritime traffic, may cause environmental hazard having economic ramifications on the littoral states‘ SLOCs and consequently on international trade. Claiming of 12 NM territorial sea by coastal states in terms of UNCLOS has taken over 100 straits including strategically important straits like; Hormuz, Malacca, Gibraltar, Bab El-Mandeb into national jurisdictions.416
Straight baselines therefore have a key role and a close relation with the strategic factor behind their delineation. The weak maritime nations find it difficult to compete with the major maritime nations either through trade or militarily at sea. On the other hand maritime powers feel handicapped due to the reduction or abridgement of the free navigation area in the sea from commerce as well as
415 Alex G. Oude Elferink, The Law of Maritime Boundary Delimitation: A Case Study of the Russian Federation, (Netherland: Martinus Nijhoof Publishers, 1994), 311. 416 UN DOALOS, Historical Perspective.
100 military strategy point of view. Mukherjee through an e-mail message to author on November 25, 2014 asserted that there is potential for interstate conflicts by reason of straight baselines being established in a manner inconsistent with UNCLOS.417
Political
A political condition is another paramount factor to shape up the maritime claims based on straight baselines. Kaikobad thinks that; ―the political significance of territory to a State lies at the very heart of the whole idea‖.418 The political imperatives mostly urge the coastal states to appropriate large expanses in the sea. Uncertainty over the limit of jurisdictions leads to un-coordinated policies. It can exacerbate the problem and consequent upon destructive competition for exploiting the resources and severe overfishing globally, leading to political tension. The political, economic and environmental impacts of such conflicts may be very serious.419
In certain cases, the states go for exaggerated claims due to political and social compulsions. Sometimes the national sentiments are so strong that governments find themselves compelled to lodge such claims due to public pressures.420 Philippine Government intended to deposit its amended archipelagic baselines law with the UN to make it compatible with the UNCLOS regime. The public filed a petition in the Supreme Court of Philippine stopping the government from depositing amended law with the UN. The argument was based on historical, scientific and legal basis. Although the Supreme Court rejected the stance of petitioners,421 yet it exhibits the awareness of public and constraints of governments on baselines and delimitation matters.
417 Prof. Dr. Mukherjee. 418 Kaiyan Homi Kaikobad, Interpretation and Revision of International Boundary Decisions, (UK: Cambridge University Press, 2007), 17. 419 Prescott and Schofield, Maritime Political Boundaries, (2005), 216. 420 Seokwoo Lee, The 1951 San Francisco Peace Treaty with Japan and the Territorial Disputes in East Asia, 11 PAC. Rim L. &Pol’y J. 63 (2002), 91. 421 Philippine Supreme Court Decision; G.R. Case No. 187167, August 16, 2011.
101 Land boundaries between the states are closer usually an eye ball to eye ball situation with more emotive issues of the citizens and the governments alike. Maritime boundaries, generally, at distant locations are not the concern of the general public due to technicalities involved. The land boundary issues are always concerned with the neighbouring states. On the other hand, the maritime boundaries may encompass three scenarios; delimitation with the neighbouring state or states, with the opposite state or states and with all the states of the world, including landlocked, due to interests in high seas and Area.
Occasionally the national ego transforms into political stunts for such foul claims to counter the adversary which later proves a stumbling block for retreating from their stance. States similarly also draw straight baselines for placing themselves in better position for bargain during negotiation with the neighbouring states for delimitations. Schofield asserts that declarations of straight baselines, ahead of discussions on delimitation between states, based on tit for-tat are meant for achieving balance with their maritime neighbours.422 Charney based on evidence of bilateral delimitation agreements suggests that strategic, environmental, geological and geomorphological considerations do a very little influence on maritime boundary delimitations. The economic, political and historical factors may have more salience.423
In a number of coastal situations the core factors for claiming excessive straight baselines are the legacy of land disputes from the colonial powers. States have inherited conflicts from the tussle of colonial masters. The classic example of such legacy is a complex political problem between Guyana and Suriname which could not be resolved by the two powers; Netherland and UK respectively during colonial time.424 In early days of 1958 Continental Shelf Convention (hereafter
422 Clive Schofield, Departures from the Coast: Trends in the Application of Territorial Sea Baselines under the Law of the Sea Convention, 27 International Journal of Marine and Coastal Law 723-732 (2012) at 728. Hereinafter “Schofield, Departures from Coast (2012)”. 423 Charney and Alexander, Maritime Boundaries, Vol-I, (1993), xliii. 424 Charney, International Maritime Boundaries, Vol-5, (2005), 3426.
102 CSC), the states were more prone to the desire of acquiring more continental shelves.425 With the advent of other maritime zones with peculiar reference to the potential of EEZ, the temptation of states for appropriation of more area is not scarce. The excessive straight baseline claims flow from dichotomous perspectives and historical political differences existing between the states too.
The territorial sea and EEZ of states are the richest resource zones housing major SLOCs which have great impinging upon the political stability of states as well as the regions. The competition for possession of resource rich sea areas, international trade routes, desire for excessive claims and historical rivalries are transforming into geopolitical contentions. The straight baseline mechanism has become an easiest way for the coastal states to lodge excessive claims. The simmering tensions on straight baselines delineation are leading to disputes between the states.
Psychological
The psychological factor for excessive straight baseline claims has been rarely discussed by the scholars. Exploration and exploitation of sea resources had not been reality like today‘s world. The developing and under developed states had a lacking on two counts; awareness about the resources of sea and incapability to their exploitation. It was probably the negotiation of UNCLOS which provided insight of the sea resources and importance of the oceans to the developing and weak maritime states. The potentials of sea resources were not more than a dream to most of the nations. Blake is of the opinion that International boundary lines have a great significance for the states. Apart from representing the jurisdictional limits and defining ownership of the resources, they have immense significance; psychologically and politically.426
425 Charney, International Maritime Boundaries, Vol-5, (2005), 3500. 426 Gerald Blake, The Depiction of International Boundaries on Topographic Maps, (IBRU: Boundary and Security Bulletin, 1995), 44.
103
The occupation of sovereignty and sovereign rights in the zones was certainly a solace and psychological gain. To most of the states, it is still a moral and psychological consolation despite lack of their capability to make use of the benefits of these resources. Most of the developing countries do not possess the data of resources in their zones whether living or non-living but they avoid engaging foreign states or firms to exploit them. At the same time they do not have the data about their areas of sea but are generally reluctant to allow other countries for marine scientific research (hereafter MSR) apparently due to fear of the unknown. This fear or reluctance is more peculiar with the states which were liberated from the colonial rules or foreign occupation due to inherent mistrust. Ensuring offshore resources and economic security is both; psychological and political.427
The militarily weak and developing states feel it more secure to push the limits of their maritime boundaries seaward as much as they can. The easiest course of action for stretching the boundaries seaward is employment of foul and excessive straight baselines for their psychological consolation. The data of states which deposited their claims for extension of continental shelves portrays that for most of the states it was mere a psychological consolation than practical utility. The data of developing coastal states having explored or exploited their EEZ for tapping the offshore resources is not very significant apart from psychological satisfaction of appropriating the sea area.
In cases of ambiguities in a treaty or convention terms VCLT acts as a tool box providing various methods for the interpretation. Assistance may be sought from VCLT to give clarity to the vague and ambiguous terms of UNCLOS. The next chapter shall explore the methods of interpretation for eliciting clarity on the meanings of Article 7 of UNCLOS.
427 Juan Luis Suarez de Vivero and Juan Carlos Rodriguez Mateos, New Factors in Ocean Governance. From Economic to Security-Based Boundaries, 28 Marine Policy 185-188 (2004), at 187.
104
Conclusion
Analysis of straight baseline issues leaves no ground to confirm that vagueness and abstractness exists in Article 7 of UNCLOS. These ambiguities have facilitated the way for flexible interpretation of the principles and employment criteria for straight baseline. Despite elapsing of time uniformity of rules on the issue could not be evolved either through any international agreement or state practice being too inconsistent. The option of amendment in the straight baseline provision of UNCLOS seems a practical impossibility. The states being the driving force for such amendment are not likely to initiate this procedure. The international organizations do not have the prerogative to initiate such procedure as was available in the case of TSC.
The tug of war between the doctrinal concepts of mare Librium (freedom of the seas for all) and mare Clausum (appropriation of sea) is centuries old. The strong maritime powers always advocate for free access to the oceans; contrarily week states demand possessiveness of the sea areas. UNCLOS has although struck a balance between the rights and obligations of states in the sea, yet expansionism seaward by the states using excessive straight baselines is continuing unabated. A lot of ink has been spilt on excessive straight baseline issue however factors for such claims have not been addressed to date. There may be plenty of factors and objectives behind the application of straight baseline system. Some factors may have peculiarity due to geographical conditions of a region or a state. The general factors discussed could, most of the times, have an accumulative effect.
It is, nevertheless, a reality that controversies over excessive straight baselines may jeopardize the international peace as any incipient incident at sea may have strategic impacts at international plane. The factors behind excessive claims may vary but the easiest way for the coastal states to lodge excessive claims is through illicit straight baselines. The modern scientific knowledge about the sea and depletion of land resources persuade the coastal states to appropriate large
105 expanses due to vested interests. The strategic relevance to the excessive claims is likely to continue for the coastal states and major maritime powers specially. The factors discussed in the chapter are evident from the excessive claims by the coastal states. The safety valve is that states keep the windows of negotiation open for amicable resolution of controversies. The passage of time and awareness of the potential of sea resources may rigidify the illicit straight baseline claims to bleak the chances of their revision or withdrawal.
106 CHAPTER 5
APPROACHES TO INTERPRETATION OF UNCLOS
Interpretation of Treaties-Approach in General
The differences of opinion do arise and would continue to arise on the interpretation of provisions and terminologies of conventions. Interpretation is one of the most difficult and tedious area after the convention is concluded.428 Interpretation means the process designed to establish meaning of some words, phrases or text in a treaty in its true perspective.429 The continuing problematic issue faced by the courts and lawyers is interpretation of the treaties.430 It is interesting to note that the provisions of VCLT which were aimed at providing framework for treaty interpretations by themselves are subject to variety of interpretations.
Different approaches to interpretation mirror much to the background and system of law followed by the individual judge or publicist. Normally, only those cases come for interpretations to the courts and tribunals in which a real ambiguity persists. Sometimes there is a thin line in the meanings and connotations of a word or phrase. No consistent case law on interpretation issue is found pre-1969. Permanent Court of International Justice (PCIJ) and ICJ have extended support to various approaches of interpretation at different occasions.431
In private international law matters, the parties very frequently move the national courts as well as international forums for interpretation of disputed treaty terms and phrases. This is evident from UNCITRAL digest of court cases on UN
428 O’Brien, International Law, (2001), 345. 429 Oliver Dorr & Kirsten Schmalenbach ed., Vienna Convention on the Law of Treaties: A Commentary, (London: Springer, 2012), 522. 430 Shaw, International Law, (2008), 932. 431 ILC Yearbook 1964, Vol-II, 54, para 5.
107 Convention on Contracts for International Sale of Goods.432 VCLT enjoins upon the parties to perform their treaty obligations in good faith in the spirit of maxim ‗Pacta Sunt Servanda‘.433 ICJ in a case reiterated this principle and stressed that ―Parties find an agreed solution within the cooperative context of the Treaty‖.434 During Air Transport Agreement Arbitration, the tribunal opined that the purpose of interpretation is to find out the common intention of parties to the treaty.435
VCLT emphasizes upon interpretation based on ‗good faith‘, according to ordinary meanings of treaty and in the context of its object and purpose.436 ILC observed that when there is choice between two interpretations; the one that provides appropriate effects to the treaty, in reference to good faith, purpose and object, is to be taken.437 In Libya/Chad case ICJ acknowledged this principle including the supplementary means of interpretation.438 Article 31(1) of VCLT stresses that any instrument relating to treaty conclusion, subsequent agreement between parties to treaty on its interpretation or practice in its application, applicability of any specific rules of international law or intention of parties.439 VCLT also includes preparatory work as supplementary means of interpretation.440 The principle was later supported by the ICJ decision in 1995.441
Notwithstanding, there is a divide on scholarly opinion in this regard. The group which emphasizes on literal meaning of the provisions considers that good faith principle is just an additional criterion for judges and arbitrators in the
432 UNCITRAL, Digest of Case Law on the United Nations Convention on Contracts for the International Sale of Goods, (New York: 2012). 433 VCLT, Article 26. Also in ILC Yearbook 1966, Vol-II, Part-II, 211. 434 Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgement, ICJ Reports 1997, p. 7 para 142. 435 Interpretation of the air transport services agreement between the United States of America and France, (USA v. France), Award of 22 December 1963, UNRIAA, Vol -XVI, pp. 5-74, 62. 436 VCLT, Article 31(1). 437 ILC Yearbook 1966, Vol-II, Part-II, (United Nations, New York, 1967), 219. 438 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, ICJ Reports 1994, p. 6, para 41 at 21-22. 439 VCLT, Article 31(3). 440 Ibid., Article 32. 441 Qatar/Bahrain Case, Jurisdiction and Admissibility, Judgment, ICJ Reports 1995, para 41.
108 interpretation.442 Fitzmaurice has summed up443 the existence of five approaches to treaty interpretations prevalent before VCLT and used by the courts which are; textual, ordinary meaning, integration, effectiveness and subsequent state practices. Felemegas is of the view that ‗good faith‘ principle may be problematic for uniformity of application due to its various meanings and connotations in different legal systems.444 All these approaches have their own merits and demerits and are not exception to criticism.
Interpretation of UNCLOS
International legal bindings may be created by the states either by entering into treaty or through consistent state practice in the form of customary law accompanied by opinio juris.445 After having generic glance at treaty interpretations, which stands valid for UNCLOS too, it is considered quite apposite to centralize upon interpretations of UNCLOS provisions with some specificity. Just like contracts between the individuals, the contracts (treaty) between the states are prone to dispute regarding interpretation of terms used. This issue is more complex in case of multilateral conventions due to multifaceted and multifarious interests involved. If most of the treaty or convention terms are not self-explanatory like UNCLOS the situation becomes very complex.
Since the drafting of UNCLOS III was mostly conducted at informal meetings, its formal record is not available like UNCLOS I and II.446 UNCLOS III from its commencement had a preponderance of political rather than legal shade. Instead of Legal committee, Political committee of the UN General Assembly was tasked
442 John Felemegas, An International Approach to the Interpretation of the United Nations Convention on Contracts for the International Sale of Goods (1980) as Uniform Sales Law, (New York: Cambridge University Press, 2007), 13. Hereinafter “Felemegas, An International Approach, (2007)”. 443 Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice 1951-4: Treaty Interpretation and Certain Other Treaty Points, 33 BYIL 203 (1957), 1. Hereinafter “Fitzmaurice, Law and Procedure of ICJ (1957)”. 444 Felemegas, An International Approach, (2007), 13. 445 Nancy Kontou, The Termination and Revision of Treaties in the Light of New Customary International Law, (Oxford / New York: Clarendon Press, 1994), 1. 446 DJ Harris, Cases and Materials on International Law, 6th ed., (London: Sweet & Maxwell, 2004), footnote 15 at 382. Hereinafter “Harris, Cases and Materials, (2004)”.
109 for the purpose. The large number of states with their own competing interests multiplied the difficulties in the negotiation process.447 The peculiarity of UNCLOS lies in the fact that process of voting upon the particular provisions was not carried out.448 It was perceived feasible to move ahead by adopting consensus approach.449
The compromises accepted for the culmination of UNCLOS are self-evident which lead to many ambiguities in its wording. This reality is corroborated through the averment by Mr. Koh, the President of UNCLOS III, on the occasion of closing ceremony admitting compromises in the convention and its package deal status.450 Mr. Koh, at the same time clarified the integration of this document in the following terms;
―Thus it is not possible for a State to pick what it likes and to disregard what it does not like. It was also said that rights and obligations go hand in hand and it is not permissible to claim rights under the Convention without being willing to shoulder the corresponding obligations.‖451
Shearer‘s opinion seconds the views of Koh, when about formation of UNCLOS he highlights; ‗on certain critical points, disagreement was papered over by compromises or disguised by opaque texts that elude clear meaning‘.452 In the light of decisions of Courts, tribunals and writings of publicists, it can be assessed that criteria for interpretations almost boils down to the terms of VCLT. In the absence of any general consensus on any particular approach or approaches, it seems logical that the criteria adopted at VCLT should be taken as standard. It is pertinent in light of variety of judgments pronounced by the ICJ where Articles 31
447 Churchill and Lowe, LOS, (1999), 17. 448 Harris, Cases and Materials, (2004), 383. 449 Churchill and Lowe, LOS, (1999), 17. 450 Harris, Cases and Materials, (2004), 384 at footnote 26.Also Churchill and Lowe, LOS, (1999), 17. 451 Source: https://www.un.org/depts/los/convention_agreements/texts/koh_english.pdf (accessed on 14 August 2014). 452 Alex G. Oude Elferink and Donald R. Rothwell Ed., Oceans Management in the 21st Century: Institutional Frameworks and Responses, (Netherland: Koninklijke Brill NV: 2004), 4.
110 and 32 of the VCLT have been declared to have assumed customary law status.453 ITLOS in Seabed case included Article 33 of VCLT as well454 whereas ICJ in Botswana v. Namibia case455 gave a verdict that Article 31 of VCLT had acquired customary international law status.
It bears pertinence that 1969 UN Conference on the Law of Treaties adopted Articles 31(by 99 votes to none with one abstention)456 and 32 (by 100 votes to none).457 The convention enjoins upon good faith, determination of treaty in ordinary meanings in their context, in the light of object and purpose458 as the primary sources of interpretation. The convention then enumerates the additional means; any specific agreement between parties concerning treaty459, any instrument between some of the parties relating to conclusion of treaty accepted by other parties,460 any subsequent agreement relating to treaty interpretation461 or application, any subsequent practice in treaty application462 or other rules of international law.463
453 Application of the Convention on the Prevention and Punishment of Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, p. 43, para 160. Also Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), Judgment, ICJ Reports 2002, p. 625, para 37 at 645. Also Award in the Arbitration regarding the Iron Rhine (“Ijzeren Rijn”) Railway between the Kingdom of Belgium and the Kingdom of the Netherlands, decision of 24 May 2005, 27 RIAA 35, para 45. 454 ITLOS, Seabed Disputes Chamber, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion), 1 February 2011, para 57. 455 The Kasikilii Sedudu Island (Botswana v. Namibia), Judgment, ICJ Reports 1999, p. 1045, 1059. 456 Official Record UN Conference on the Law of Treaties, Summary records of the plenary meetings and of the meetings of the Committee of the Whole, 2nd Session, Vienna, 1969, (New York, 1970), 60. 457 Official Record UN Conference on the Law of Treaties, 2nd Session, (New York, 1970), 63. 458 VCLT, Article 31(1). 459 Ibid., Article 31(2)(a). 460 Ibid., Article 31(2)(b). 461 Ibid., Article 31(3)(a). 462 Ibid., Article 31(3)(b). 463 Ibid., Article 31(3)(c).
111 The convention caters for giving of special meaning464 if intended so by the parties. The paramount consideration remains as to what should be accepted as evidence to find the meanings of text, various elements for such interpretations and the priority to be accorded to them. It shall be in place to mention that treaty interpretation is not the task of courts or tribunals only. It may be done by any person or body having authoritative power vested in it.465 Two other approaches to interpretation; ‗Static or Contemporaneity466 affirmed by Eritrea–Ethiopia Boundary Commission467 and Dynamic or Evolutionary principle468 applied by the ICJ in Namibia opinion469 and Aegean Sea continental shelf case.470
„Good Faith‟ Principle
Pacta sunt servanda is corner stone of the regime of treaty performance by the parties. ‗Good faith‘ demands from the parties to the treaty to act with honesty, fair play, reasonability and refraining from unfair advantage.471 There is agreement on importance of this principle but no unanimity exists on its nature whether it is rule of natural law, general principle of law or a customary law.472 In Nuclear Tests Case New Zealand challenged the legality of France‘s atmospheric nuclear tests in South Pacific Ocean. ICJ pronounced that good faith principle is amongst the basic principles in performing legal obligations by the parties.473 In
464 VCLT, Article 31(4). 465 PCIJ Advisory Opinion No. 8, Question of Jaworzina (Polish–Czechoslovakian Frontier) PCIJ Series B, No 8 (1923), 37. 466 Deducing treaty meaning in the light of treaty provisions and circumstances at the time of treaty conclusion. 467 Arbitral Award Eritrea-Ethiopia Boundary Commission Delimitation of the Border Between Eritrea and Ethiopia (Eritrea v Ethiopia), 2002, 25 RIAA 83, 110. 468 Establishing meaning of a treaty at the time of its interpretation. 469 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), Advisory Opinion, ICJ Reports 1971, p. 16, para 53. 470 Aegean Sea Continental Shelf Case (Greece v Turkey), Jurisdiction, ICJ Reports 1978, p. 3, para 77. 471 Interpretation of the Algerian Declarations of 19 January 1981 by the Iran-US Claims Tribunal, ILR 62 (1982) 605 f quoted in Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties, (Leiden / Boston: Martinus Nijhoff Publishers, 2009), 425. Hereinafter “Villiger, Commentary, (2009)”. 472 Sorensen, Manual, (1965), 127. 473 Nuclear Tests (New Zealand v. France), Judgment, ICJ Reports 1974, p. 457, para 49.
112 Iran-US arbitration an interesting comment was passed which says; good faith means something, rather than nothing.474
In Gabcikovo-Nagymaros case concerning hydro-electric dam construction scheme between Hungary and Slovakia, ICJ reiterated on the principle of Pacta sunt servanda. The Court emphasized on reciprocal compliance475 and finding cooperative solution by the parties to treaty.476 In order to realize the purpose of treaty, the parties are obliged to apply the good faith principle.477 Good faith and Pacta sunt servanda principles in fact are integral part of each other.478
It is perceived that good faith principle has both; moral as well as legal binding in fulfilment of treaty obligations by the parties. It has vital significance due to the nature of UNCLOS which allows many measures to be taken by the individual states at their discretion. This is evident from choice of their baselines system where it necessitates that states should follow this good faith principle as a golden thread. The principle has been repeated twice in VCLT once in Article 26 and again in Article 31(1). It is felt that Article 26 is a general exhortation regarding performance of obligations in good faith by parties to treaties being umbrella treaty. It reemphasizes this principle in specific on the interpretations of treaties considering it a challenging task.
„Ordinary Meaning‟ Principle
In the Territorial Dispute between Libya v. Chad, the Court pronounced that ―interpretation must be based above all upon the text of the treaty‖.479 On a
474 The Minority Opinion in the Iran-US Claims Arbitration (1981), ILR 62 (1982) 603, quoted in Villiger, Commentary, (2009), 425. 475 Hungary/Slovakia case, Judgement, ICJ Reports 1997, p. 7 para 114. 476 Ibid., para 142. 477 Ibid., para 142. 478 Sorensen, Manual, (1965), 211. 479 Libyan Arab Jamahiriya/Chad Case, Judgment, ICJ Reports 1994, p. 6 para 41 at 21-22. Also in Robert Jennings and Arthur Watts Ed., Oppenheim’s International Law, 9th ed., Vol-I, (UK: Longman Group, 1992), 1272. Hereinafter “Jennings and Watts, Oppenheim’s International Law, Vol-I, (1992)”
113 question concerning admitting of a state to UN by General Assembly directly without recommendation of Security Council, as required by Article 4(2) of UN Charter, the court categorically declared that the foremost mode of interpretation is natural and ordinary meaning in the context given. If it makes sense the interpretation is over.480 If a party claims to have specific or exceptional meaning of some word or phrase in the treaty the onus of strict proof shifts on party which claims it.481 Contrary to this, in Aegean Sea case the ICJ opined, ―the Court cannot base itself on a purely grammatical interpretation of the text" .482 In another case ICJ, concurred the ordinary meaning principle but not as absolute. It clarified that if interpretation in this manner results in incompatibility with the purpose or spirit of the clause then no reliance be made on this principle.483
In view of little help from the literal meaning, the other principles and the intention of parties would be more pertinent to arrive at logical interpretations. In Panama/France case, Judge Mensah remarked;
―[.....] it is neither reasonable nor possible for the Tribunal to confine itself in every case to the bare language of the Convention's provisions. It is permitted, indeed required, to "flesh out" the bones of the provisions to the extent necessary in the circumstances of a particular case in order to attain the objects and purposes of the provisions in question.484
In Brazilian Loans Case,485 the PCIJ adjudged that in ambiguity on the construction of documents, meanings should be construed contra proferentem.486 ICJ verdicts on ordinary meaning principle put a restriction of interpreting the
480 Competence of Assembly Regarding Admission to the United Nations, Advisory Opinion, ICJ Report 1950, p. 4, 8. 481 Conditions of Admission of a State to Membership in the United Nations case, ICJ Reports 1948, p 57 at 63. 482 Greece v Turkey Case, Jurisdiction, ICJ Reports 1978, p. 3, para 55. 483 South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of 21 December 1962: ICJ Report; 1962, p. 319 at 336. 484 Case No. 5, (Panama v. France) ITLOS 2000, Declaration of Judge Mensah at para 4. 485 Brazilian Loans Case, (1929) PCIJ, Series A. No. 21, 114. 486 Contra Proferentem is a Latin term which means “against the offeror. Source: http://definitions.uslegal.com/c/contra-proferentem-doctrine/ (accessed on 3 September 2015).
114 term contextually and not in abstract487 keeping in view the treaty‘s object and purpose.488 The ILC worked from the basic assumption that;
―The text must be presumed to be the authentic expression of the intentions of the parties, and that, in consequence, starting point and purpose of interpretation is to elucidate the meaning of the text, not to investigate ab initio the intentions of the parties.‖489
During negotiations on Law of Treaties, UK delegate contended that ―ordinary meanings‖ did not mean the dictionary meanings of the terms of treaty arbitrarily rather keeping in view the object and purpose as well.490 The case of UNCLOS is not so simple to just attribute some meaning as understood by the court or tribunal on the face of the text. Any arbitrary interpretation of UNCLOS provisions, without considering practical impinging, may fragment the balance created in the form of parties‘ rights and obligations on principles of good faith, due and reasonable regard. It has been maintained that the object and purpose of such interpretation should be to keep the balance between rights and obligations that the treaty creates.491 The same word or term may have plain and technical meaning as well followed by change in the connotations of words with the passage of time.492 Establishing plain and ordinary meanings of the treaty text should be the parties‘ common intention.493 The principle of ordinary meaning, good faith, object and purpose do apply mutatis mutandi494 to UNCLOS. Nonetheless, the peculiar circumstances behind the formation of UNCLOS need to be taken into account before adopting any approach for its interpretation.
487 Jennings and Watts, Oppenheim’s International Law, Vol-I, (1992), 1273. 488 Ibid. 489 ILC Yearbook 1964, Vol II, 56 para 13. 490 United Nations Conference on the Law of Treaties, Official Records: (First Session – 1968), para 7 at 177. 491 GYBIL 25 (1982), 520 cited in Villiger, Commentary, (2009), 272. 492 Sorensen, Manual, (1965), 127. 493 ILC Yearbook 1966, Vol II, 220, para 11. 494 ‘Mutatis mutandis’ is a Latin phrase meaning "the things being changed which are to be changed" or simply "with such changes as may be necessary ". Source: P. Ramanatha Aiyar eds., Advanced Law Lexicon, Vol-3 L-P (India: Wadhwa and Company Nagpur, 2005), 3107.
115 Object and Purpose
The object and purpose play a supreme role in interpretation of conventions concerning human rights.495 In multilateral treaties, the parties agree on ambiguous or flexible terms as compromise to avoid failing of treaty. Parties to a treaty sometimes leave ambiguities for finding solutions in the future through further negotiations under the umbrella convention or through interpretation. UNCLOS probably is one of the conventions which at the time of its constitution appeared more prone to objectivity than meaning of its provisions.
The object and purpose cannot stand alone because for finding object and purpose there has to have some text or phrase with certain meanings. The object and purpose principle was pronounced in many cases by the ICJ as an important factor during interpretations.496 ILC preparatory work on VCLT is evident that the ‗ordinary meanings‘ are to be determined in treaty context and taking into account its object and purpose.497 Sometimes, based on national legal framework, two kinds of teleological interpretations encompass as; subjective498 and objective.499 Nonetheless, this categorization has no international recognition.500 The affirmation and application of object and purpose principle, like many other cases, was declared by ICJ in Advisory Opinion on Genocide case.501 McDougal says that referring to ‗context‘, ‗object‘ and ‗purpose‘ is not meant for taking away the
495 IACHR, Advisory Opinion, OC-4/841984, January 19, 1984, Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica, para 24 (“the purpose is that interpretation should not lead to ‘weakens the system of protection established by (the Inter-American Human Rights Convention)”. 496 Convention on the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, p. 43, para 160 at 109-110. Also Rights of Nationals of the United States of America in Morocco (France v United States), ICJ Report 1952, p. 176 at 196. 497 ILC Yearbook 1966, Vol II, 221, para 12. 498 When interpretation of treaty is according to object and purpose of the originator. Source: Ulf Linderfalk, On The Interpretation of Treaties, (Netherland: Springer, 2007), 205. Hereinafter “Linderfalk, On The Interpretation of Treaties, (2007)” 499 Using the Object and Purpose, the interpretation is done through rational construction by someone other than originator usually by legal community or people in general. Source: Ibid. 500 Ibid. 501 Reservations to the Convention on Genocide, (Advisory Opinion), ICJ Reports 1951, p. 15, 24.
116 arbitrariness and blindness in ordinary meaning.502 There is a scholarly opinion that vague terms like object and purpose erode the capacity of law to guide state behaviour.503 Sinclair reiterates on finding object and purpose of a treaty during its interpretation.504
Additional Means
Apart from the basic means of interpretation505, VCLT enumerates some additional means. In accordance with VCLT, for treaty interpretation purposes, the context comprises; the text, its preamble and annexes; any agreement or instrument regarding treaty conclusion and acceptance of such instrument by other parties.506 Taking into account other means along with the context include; subsequent agreement or practice on treaty interpretation or application between the parties or relevant international law rule applicable to them. It also includes any special meanings assigned to a term showing intention of the parties to treaty,507 provided there is evidence for such peculiarity.508
The burden to establish the special meaning lies on the party which claims it. Norway could not succeed in proving the special status of ‗Eastern Greenland‘.509 In a boundary case ICJ pronounced that treaty term must be interpreted to ascertain ―intention of parties at the time‖.510 While delivering advisory opinion, ICJ accepted principle of subsequent practice of parties in application and
502 Myres S. McDougal, The International Law Commission’s Draft Articles Upon Interpretation: Textuality Redivivus, 61 AJIL 4 pp. 992-1000 (1967), 993. 503 David S. Jonas and Thomas N. Saunders, The Object and Purpose of a Treaty: Three Interpretive Methods, 43 Vanderbilt Journal of Transnational Law 565 (2010) at 569. 504 Ian McTaggart Sinclair, The Vienna Convention on the Law of Treaties, 2nd Ed., (UK: Manchester University Press, 1984), 247. 505 VCLT, Article 31(1). 506 Ibid., Article 31(2). 507 Ibid., Article 31(3). 508 Ibid., Article 31(4). 509 PCIJ Reports, Series A./B., No. 53, (1933), 49 . 510 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Judgment, ICJ Reports 2002, p. 303 para 59 at 346.
117 operation of a treaty.511 If the case of UNCLOS provision on straight baselines is put in perspective of additional means, it makes clear that deducing interpretation in light of these principles is very difficult if not impossible.
Supplementary Means
Supplementary means of interpretation consist of preparatory works including circumstances leading to conclusion of the treaty512 to ascertain the issue through intention of the parties. The matter of interpretation via this method has remained subject of controversy amongst the courts and scholars alike. Long before coming into life of the VCLT, PCIJ rejected the idea of invoking preparatory work when treaty text has sufficient clarity.513 The materials used during the preparation of treaty for its conclusion constitute a legislative history usually referred as Travaux preparatoire.514
The PCIJ and ICJ have frequently affirmed to have recourse to Travaux preparatoire being useful mode.515 It comprises different documents which include; discussion reports, hearings and floor debates during the drafting of a treaty. The recording of Travaux preparatoires is generally meant for subsequent use while interpreting the treaty being a secondary source to determine the intent of parties.516 Contemporaneity principle517 had been declared as an important factor in the Morocco case.518 In river Oder case concerning jurisdiction, PCIJ declared that
511 International Status of South-West Africa (Advisory Opinion), ICJ Reports 1950, p 128 at 135- 136. Also in France v United States Case, ICJ Report 1952, p. 176 at 200. 512 VCLT, Article 32. 513 SS Lotus Case (1927) PCIJ Series A, No. 10, Judgment No. 9 at 16. 514 The literal meaning of this French term is preparatory works. 515 Employment of Women during the Night Case, PCIJ 1932, Series A/B, No. 50, 378. Also Convention on the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ Reports 2007, p. 43, at 110. Also in France v United States Case, ICJ Report 1952, p. 176 at 198. 516 Source: http://definitions.uslegal.com/t/travaux-preparatoires/ (accessed on 16 December 2014). 517 Interpretation of treaty in consonance with the meaning intended at the time of conclusion of treaty. 518 France v United States Case, ICJ Report 1952, p. 176 at 189.
118 preparatory work of a treaty cannot be used to determine its meaning particularly as evidence against the party which was not part of preparatory work.519
Judge Alvarez opposed to resorting Travaux Preparatoires. He says once the treaty comes into force it does not require dependence on parties‘ common intention.520 Fitzmaurice does not buy the idea of interpretation though Travaux Preparatoires by calling it, ―most of the time, confused and confusing‖. Generally they support the point of views on both sides.521 Fitzmaurice reiterates on the reliance of subjective and objective intention of the parties to the treaty.522 The contention against resorting to preparatory materials seems weightier for multilateral treaties.523
Article 32 of VCLT allows some supplementary means for the interpretation of treaty. It is meant to confirm the meaning deduced from deliberation based on Article 31 or authenticate meaning when interpretations in light of Article 31 still have ambiguity or obscurity or absurdity or un-reasonability.524
Mr. Rosenne, delegate from Israel, during the negotiation of Law of Treaties, supported the routine consultation of preparatory work. He shared his personal experience of states using preparatory work done at the conference subsequent to acceding of treaty in which they did not participate. He suggested the keeping of preparatory work at its normal position in the material of interpretation.525 Argentina emphasized that the importance of the preparatory work as a
519 The International Commission of the River Oder, (1929) PCIJ Series A, No. 23, Annex 3 of Judgment No. 16, 42. 520 Reservations to the Convention on Genocide, Dissenting Opinion of Judge Alvarez, ICJ Reports 1951, p. 15 at 53. 521 Fitzmaurice, Law and Procedure of ICJ (1957), 15. 522 Frank Engelen, Interpretation of Tax Treaties under International Law, (Netherland: IBFD Publications BV, 2004), 24. 523 Arnold D. McNair, "The Functions and Differing Legal Character of Treaties", 11 BYIL 100 (1930) at 107-108. 524 VCLT, Article 32. 525 ILC Yearbook 1966, Vol-I, Part-II, paras 33-34 at 200.
119 supplementary means of interpretation was undeniable, but due to difficulties in ascertaining the intentions, caution was required in using preparatory work.526
The official VCLT records show mixed comments from the delegates of various countries on interpretation of treaties. For example; France maintained that seeking the intention of parties through unilateral and incomplete documents was highly unreliable. She reiterated on the preference of ordinary meanings and to recourse preparatory work as an alternate.527 Brazil supported ordinary meanings and preparatory work as supplementary means and not complementary means.528 UK stressed on ordinary meanings of the text once agreement is reached on the treaty. She refuted the idea of investigation from ab initio instead of elucidation of textual meanings.529
Lauterpacht is of the opinion that common intention of parties in the treaties is difficult to find particularly when provisions of the same treaty are inconsistent mutually. During negotiations on multilateral treaties covering large subjects, the compromising provisions drafted after prolonged discussions are mostly inconsistent. A judge coming across this situation must view the whole treaty instead of finding will of parties.530 He stresses that on account of compromise in the treaties on vital political interests, it necessitates for the understanding to have recourse to the travaux preparatoire.531 O‘Connell while admitting requirement of preparatory work suggests its sparing use peculiarly where meanings of text
526 United Nations Conference on the Law of Treaties, Official Records: (First Session – 1968), para 25 at 180. 527 Ibid., paras 47 and 49 at 176. 528 Ibid., para 53 at 176. 529 United Nations Conference on the Law of Treaties, Official Records: (First Session – 1968), paras 5-6 at 177. 530 H. Lauterpacht, ‘Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties’ 26 BYBIL 48 (1949) at 76 quoted in R. P. Schaffer, Current Trends in Treaty Interpretation and the South African Approach, 7 Austl. Y.B. Int'l L. 129, (1981), 131. Hereinafter “Schaffer, Current Trends, (1981)” 531 Comments of Lauterpacht in this regard in 'Some Observations on Preparatory Work in the Interpretation of Treaties' 48 Harv LR 549 (1934-5) at 575 quoted in Schaffer, Current Trends, (1981), 145.
120 contain clarity and are ambiguity free. He perceives that on certain occasions resorting to this source may be ‗distinctly unhelpful‘.532
Like other peculiarities of UNCLOS, its preparatory work does not provide a deep insight because the negotiations were mostly held during its informal sessions. Very limited official record is available on negotiation process. In view of scarcity of official record due care demands that version of delegates and supporting staff should be taken with extreme caution. Since these delegates and staff were after all deputed by their governments and their stance would require independent corroboration to elicit the complete negotiation facts. Nonetheless, the importance of work carried out by ILC in the negotiation for 1958 Geneva conventions cannot be underestimated. Its relevance is further augmented by the fact that most of the provisions of UNCLOS are identical, verbatim or in some cases at least similar. Negotiation history of these four Geneva conventions is not only well deliberated but also well recorded comparing UNCLOS III.
The President of Tribunal remarked that the International Tribunal for Law of the Sea (ITLOS) comprised almost all the judges who themselves were involved in negotiation and in the drafting process of UNCLOS III acting as delegates from various states.533 Being part of UNCLOS negotiations, ITLOS judges often consulted the official and unofficial record of preparatory work for interpretation, yet they have not placed heavy reliance on it.534 In M/V Saiga case, ITLOS, for interpretation purposes, took into account the provisions incorporated from the High Seas Convention 1958 (hereafter HSC) and relied on ILC work including reports of UNCLOS I.535
532 O’Connell, The International Law of the Sea, Vol-I, (1970), 263-4. 533 ITLOS Press Release of 27 March 2002, ITLOS/Press 64. 534 The M/V "SAIGA" ITLOS Case No. 1, The Collective Dissenting Opinion of Judges Ndiaye, Nelson, Park, Rao and Vukas, paras 23 and 25. 535 The M/V "SAIGA", ITLOS Case No. 2, at paras. 80-82.
121 Conclusion
The discussion on the interpretation of treaties is an intricate issue. VCLT provides various means for the interpretation of a treaty text. The scholars, international courts and tribunals have placed reliance on different means. The text of VCLT, view point of scholars, jurists and international forums, if analysed jointly, one finds no difficulty in reaching to the conclusion that VCLT is a tool box. Different implements may be necessitated for different treaties for their interpretation. Nonetheless Article 31(1) of VCLT is a starting point for interpretation of treaties. The interpretation of terms centres on two things; the ordinary meanings and the object and purpose observing the doctrine of good faith. If the vagueness and ambiguity persists after the application of Article 31, Article 32 of VCLT ordains for using supplementary means to clear absurdity or unreasonableness. The uniqueness of UNCLOS in its nature and formation requires the composite use of all the means available. UNCLOS demands check and balance amongst all these principles for positive outcome. The arbitral tribunal in a case asserted about the interconnection and inseparability of all these principles.536 Fitzmaurice emphasizes on integration of the complete treaty text and its provisions as whole.537 Notwithstanding all the tools for interpretation, two basic elements; ordinary meanings and object and purpose are of supreme consideration for the interpretation of straight baselines terms and phrases. Subsequent state practice as additional and preparatory works as supplementary elements are also considered of value for interpretation.
536 Arbitral Award on Pollution of the Rhine (The Netherlands v. France) (2004), at para 62 available at http://www.pca-cpa.org/showpage.asp?pag_id=1156 (accessed on 12 August 2014). 537 Frank Engelen, Interpretation of Tax Treaties under International Law, (Netherland: IBFD Publications BV, 2004), 65.
122 CHAPTER 6
DEEPLY INDENTED AND CUT INTO COASTS
Article 7(1) of UNCLOS outline the conditions to qualify or otherwise for the application of straight baselines. The sub-provision reads; ―In localities where the coastline is deeply indented and cut into, [.....] the method of straight baselines joining appropriate points may be employed [.....]‖. The provision neither defines deep indentation and cut into nor terms ‗localities‘ or ‗coastline‘. The vagueness that is associated with the conditions like deeply indented and also in cut into is prevalent in the precursors of criteria such as localities and coastline. It is considered that before delving on deep indentation or cut into criteria understanding of terms localities and coastline merits serious attention. The non-comprehensiveness in the straight baseline article starts with the initial word as to what are localities in qualitative term? What is coastline to determine extent of zones landward and seaward? In order to generate understanding of these terms some discussion is dedicated in the light of ordinary meanings and judicial decisions.
Localities
The ordinary meanings of word ‗locality‘ are ―the state or condition of existing in a place or in a certain portion of space; position with regard to surrounding objects, land-marks, etc.; as a sense of locality.‖538
The Oxford dictionary defines locality as; ―The fact of being local, in the sense of belonging to a particular spot‖.539
UNCLOS does not define the word locality. At the same time no internationally recognized definition of ‗localities‘ is available for utilization as a standard criterion.540 The word ‗locality‘ or ‗localities‘ has been repeatedly used during
538 Webster’s New Universal Dictionary of the English Language, (New York: Webster’s Universal Press, 1977), 1061. Hereinafter “Webster’s Dictionary, (1977)”. 539 The Oxford English Dictionary, Vol-III, (Oxford: Clarendon Press, 1969), 380. Hereinafter “Oxford Dictionary, Vol-III, (1969) 540 LIS No. 106 (1987), 12.
123 the negotiations541 on draft 1958 Geneva Conventions that all hint on particular area, region not having any relation with the contiguity or adjacency of the area as a whole. Reliance has to be placed on ordinary meanings, object of its use in Article 7 of UNCLOS and inferences drawn from different documents.
The term locality and localities has been frequently used in collection of sea level change data of various coastal areas of US using the word localities i.e. New York, Texas, Alaska etc.542 It shows that localities need not to be adjacent. The term locality has been used at various places in ILC‘s reports to mean a particular area or place.543
In 1972 Indonesia, Philippines, Mauritius and Fiji while submitting draft to the Seabed Committee talked about states in ‗localities‘, having reefs.544 In Gulf of Maine Judgment court connoted ‗locality‘ as the particular area545whereas the word ‗localities‘ has been used for areas on both sides of the dividing line.546 In North Sea Continental Shelf judgment the court used the word ‗localities‘ in the sense of correlation of configuration of territorial sea and its effect on continental shelf area.547 In another judgment the ICJ quoted this passage of effect on localities in the continental shelf.548
From the discussions and aspects highlighted in the foregoing it can be said that locality which represents one integrated unit of geographical location does mean
541 UN Conference on the Law of the Sea, Official Records, Vol-I: Preparatory Documents, (Geneva: 24 February – 27 April 1958), para 13 at 49, para 68 at 57, 78, para 82 at 58, 179. 542 Angela L. Coe Ed., The Sedimentary Record of Sea-Level Change, (UK: Cambridge University Press, 2003), 42, 84, 160, 164, 170. 543 ILC Yearbook 1979, Vol II (Part-I), Para 70 page 161. Also in ILC Yearbook 1979, Vol II (Part-I), Para 204 page 116. Also in ILC Yearbook 1978, Vol -II (Part-I), Para 411 page 106. Also in ILC Yearbook 1974, Vol II (Part-II), Para 315, Page 321. 544 Originally issued as document A/AC.138/SC.II/L/15 cited in Gerald H. Blake, Ed., World Boundaries Series, Vol-5, Maritime Boundaries, (London / New York: Routledge, 2002), 67. Hereinafter “Blake, World Boundaries Series, Vol-5, (2002)”. 545 Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, ICJ Reports 1984, p. 246 para 235 at 342. 546 Gulf of Maine Area Case, Judgment, ICJ Reports 1984, p. 246, para 238 at 343. 547 The North Sea Continental Shelf, Judgment, ICJ Reports 1969, p. 3, 37, para 59. 548 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, ICJ Reports 1982, p. 18 para 115.
124 to include word ‗localities‘ which connotes the distant geography from that locality.
Coastline
The word ‗coast‘ is ―the edge or margin of the land next to the sea; the seashore‖549. In accordance with Black‘s law dictionary; ―A ‗coast‘ is the edge or margin of a country bounding on the sea. [.....].‖550
The term ‗coastline; has diversity of definitions and meanings in view of various tidal planes used in a particular location.551 Historically the words ‗coast‘ and ‗shore‘552 have been construed interchangeably to have the same meaning.553 The digest of Justinian connotes the meaning of shore in terms of low water mark and high water mark being the boundary of the sea and not of land. It says ―the shore is measured from the sea inland, and not from the land seaward.‖554 Similarly, Roman jurists have used the word ‗coastline‘555 which borders the sea, perceivably, in the meaning of low water line. Welwod has frequently used the term ‗coast‘ and also ‗shoar‘ (shore) or ‗sea-shoar‘ meaning the line dividing the sea from the land mass at low or high water mark.556
The conceptual accuracy and accuracy in the real time application are paramount for reaching at a correct result for drawing baselines and in turn delimitation of other maritime zones in the sea. Wheaton views; ―The term 'coasts' includes the
549 Webster’s Dictionary, (1977), 346. Also in IHO, Hydrographic Dictionary, Part I, Vol-I, Special Publication No. 32, 5th Ed., (Monaco: 1994), 42. 550 ‘This word is particularly appropriate to the edge of the sea while ‘shore’ may be used of the margin of inland waters.’ Source: Henry Campbell Black, Black’s Law Dictionary, 5th ed., (USA: West Publishing Co. 1979), 232. 551 Roger Fraser, Philip Collier, Frank Leahy, Positioning Maritime Boundaries With Certainty – A Rigorous Approach, In: Addressing Difficult Issues in UNCLOS: 2003 ABLOS Conference (Monaco), pp. 1–16 at 4. 552 Myres S. Mcdougal and William T. Burke, Crisis in the Law of the Sea: Community Perspectives Versus National Egoism, 67 Yale Law Journal 4 pp. 539-589 (1958), 539. Hereinafter “Mcdougal and Burke, Crisis in LOS, (1958)”. 553 Ibid., Footnote 21 at 544. 554 Percy Thomas Fenn, Jr., The Origin of the Right of Fishery in Territorial Waters, (USA: Harvard University Press, 1926), 23. Hereinafter “Fenn, Jr., Origin of Right of Fishery, (1926)”. 555 Ibid. 556 Welwod, An Abridgement, (1613), 65, 69, 72.
125 natural appendages of the territory which rise out of waters, although these islands are not of sufficient firmness to be inhabited or fortified.[.....]‖.557 In 1903 Alaska boundary case, the tribunal admitted that the term ‗coast‘ had no definite meaning having recognition under the international law for its application. However declared that fringe of islands and mainland was not included in the meaning of coast.558
In the case, The King Vs. 49 Casks of Brandy, Sir Nicholas while defining ‗coast‘ asserts; ―the coast is, properly, not the sea, but the land which bounds the sea;[.....] varies according to the state of the tide: when the tide is in, and covered the land, it is sea; when the tide is out, it is land as far as low water mark.‖559 According to UK and US jurisprudence the islands form part of the mainland. In the Anna case,560 Lord Stowell held, ―[.....] Islands are the natural appendages of the coast on which they border and from which indeed they are formed‖. It was further held that islands; ―whether they are composed of earth or solid rock will not vary the right of dominion, for the right of dominion does not depend upon the texture of the soil‖. In Anglo-Norwegian Fisheries Case, UK conceded that islands formed part of skjaergaard of Norway‘s coastline.561 The ICJ while deciding this case paid special heed to the configuration of Norwegian coast before arriving at historic maritime decision.
In North Sea Continental Shelf case the court pronounced that examination of the geographical coastal configuration of the country concerned is paramount for boundary delimitation.562 In Anglo-French case, the court adjudicated that the configuration of coast had a direct bearing on delimitation process of coastal
557 Henry Wheaton, Elements of International Law, (Boston: Little, Brown and Company, 1866), para 178 at 178. 558 The Alaska Boundary Case, 1903 UN Report Vol XV, 498. 559 John Haggard, Reports of Cases Argued and Determined in the High Court of Admiralty 1798- 1850, Vol-III, (London: J. Butterworth & Son, 1840), 275. 560 Colombos, LOS, (1967), 113. 561 Anglo-Norwegian case, 132. 562 The North Sea Continental Shelf, Judgment, ICJ Reports 1969, p. 3, Para 96 at 81.
126 states concerned.563 In the Libya / Tunisia case, ICJ declared that the coast of state parties was key and starting point to the delimitation of their maritime boundaries.564 The court in Gulf of Maine case decided that delimitation between states depended on coastal configuration of that particular area.565 US Supreme Court explained the term ―coastline‖ as; ―the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters‖.566
The focus of all these judgments converge to one single point that coast is focal determinant for drawing baselines in general and straight baselines in particular. It can be said that coast has same importance for employing baselines as baselines have for delimitation of maritime zones. Unfortunately, both the maritime conventions; TSC and UNCLOS do not offer definitions of some basic terms used for employment of baselines. These definitions might have been purposely left to avoid controversies which could jeopardize the efforts to bring the nations to evolve compromises in the form of UNCLOS.
The key role that the geographical configuration of coast plays in the formation of baseline and delimitation of other maritime zones is extraordinarily significant. In the light of this background and aforesaid discussion, it may be summed up that in case of smooth and regular coastal configuration the low water line or in case of irregular coastal conditions the points from where straight lines are drawn can be considered coastline.
563 Case concerning Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic (UK, France), Decision of 30 June 1977, XVIII R.I.A.A. 3, Para 248 at 115. 564 Continental Shelf Case (Tunisia/Libyan Arab Jamahiriya), Judgment, ICJ Reports 1982, p.18, para 74. 565 Gulf of Maine Area Case, Judgment, ICJ Reports 1984, p. 246, para 205. 566 Source: http://definitions.uslegal.com/c/coast-line/ (accessed on 16 December 2014). Also Alaska v. United States, 546 U.S. 413, para 1(b) at 414 (2006).
127 Deeply Indented
Deep indentation of the coast has been prescribed as a fundamental condition for the employment of straight baselines. Nevertheless, neither Anglo-Norwegian case, nor TSC and UNCLOS provide any mathematical criteria or precision for application of phrase ‗deeply indented and cut into‘. Even subsequent decisions of ICJ, ITLOS or Arbitral tribunals have stressed on the criteria of deeply indented coasts and at the most the use of these lines conservatively and restrictively without providing any definition of the term. Prescott and Schofield are of the view that fjords in the Anglo-Norwegian case represent deep indentation in coast as a model.567
The traces of establishing jurisdictional rights in the gulfs (bays) indenting their shores have been found in the period of Venetians and Adriatic who received severe criticism. The enclosing of shallow indentations in the coastline had been accepted in the historical past.568 UNCLOS prescribes the basic conditions for drawing of straight baselines which are devoid of preciseness for their application. Article 7 of UNCLOS does not outline any guideline as to;
What is meant by ‗deeply indented‘? Quantitatively, how many indentations are required attracting this principle? Qualitatively how much deep indentation should be for the purpose?
This uncertainty in the definition of these terms and non-availability of objective test has led to more and more controversies amongst coastal states and scholars. A clear divide is visible between the group of states utilizing extremely or at- least flexible approach to the application of straight baselines and the states insisting on stringent view of the criteria enunciated in Article 7.
UNCLOS and TSC do not deal with the bays which are shared between different
567 Prescott and Schofield, Maritime Political Boundaries, (2005), 146. 568 Fenn, Jr., Origin of Right of Fishery, (1926), 155.
128 states.569 The problem of deep indentation criteria is compounded on the issue of shared indentation between two or more states as both the conventions are silent on it. The matter may be more serious if the states sharing indentation have different configurations and having contradictory point of view about the qualification of indentation for drawing straight baseline. Similarly the conventions do not ordain any rule for the shared estuary570 or rivers between different states.
The need for performing and interpreting treaties in good faith may never be as suited to any other treaty as to the UNCLOS. The convention is a basket of rights and obligations. A set of rights of one category of states has a corresponding duty for other category. This check and balance calls upon the parties to UNCLOS to profess the good faith principle in fairer manner. This approach is very particular and relevant in determining the fundamental prerequisite of ‗deeply indented and cut into‘ criteria.
Ordinary Meaning
Finding out ordinary meaning571 of terms ‗deeply indented‘ is the starting point for the interpretation process of these terms. An ―indentation‖ can be understood as a deep recess in a coastline.‘572 The word ‗deeply‘ can be understood; as ‗extremely‘, or ‗to a great depth‘.573 Oxford English Dictionary defines ‗deeply‘ to mean; ‗to a great or considerable depth; far downwards, inwards‘.574 Indented means; ―having the edge or margin deeply cut with angular incisions; deeply strongly, or coarsely serrated along the margin‖.575
569 TSC, Article 7 (1) and UNCLOS, Article 10(1). 570 Estuary is the tidal mouth of a river, where the tide meets the current of fresh water. Source: UN, Baselines: An Examination, (1989), Section 54 at 21. 571 VCLT, Article 31(1). 572 Lesley Brown (ed.), The New Shorter Oxford English Dictionary – On Historical Principles, (Oxford: Clarendon Press, 1993), 1346. Hereinafter “Brown, Shorter Oxford Dictionary, (1993)”. 573 Ibid., 614. 574 Oxford Dictionary, Vol-III, (1969), 121. 575 Ibid.,Vol-V, 197.
129 Object and Purpose
The next step would be to elicit object and purpose of the phrase which is fundamental to ILC treaty interpretation principles which stand true for UNCLOS. The customary international law576 and VCLT both validate this principle.577
Prior to UNCLOS-I, Francois, the Special Rapporteur to ILC had expressed, ―[.....] The system was primarily aimed at increasing the zone of internal waters wherein navigation might be restricted by the coastal State‖.578 The primary object of permitting the coastal states to draw straight baselines is certainly the simplification of imaginary lines limiting the coastal states maritime boundaries. It is meant to benefit both the coastal states and other states with more clarity on the boundaries for peaceful coexistence for their rights and obligations.
The purpose of utilizing straight baseline in place of normal baselines is to avoid complexity of territorial sea borders. The purpose may in no way be the undue increase in national jurisdiction area of a coastal state.579 The stance has been seconded by the scholars that straight baselines smooth out the coasts and eliminate complex patterns in state‘s territorial sea. The straight baselines if drawn properly do not extend the territorial limits of coastal states seaward significantly.580
The intention of the drafters of UNCLOS Article 7 was not the prerequisite of sameness of a state‘s coastal configuration with Norwegian coast from where the concept sprang. It may hardly be possible to have alike features of coastal configuration of two coasts of different states. The ICJ in Qatar/Bahrain delimitation case reiterated on the spirit of UNCLOS Article 7 without providing any objective criteria;
576 James S. Baker and Michael Byers, Crossed Lines: The Curious Case of the Beaufort Sea Maritime Boundary Dispute, 43 Ocean Dev. & Int’l L. 70 (2012) at 74. 577 VCLT, Article 31(1). 578 ILC Yearbook 1955, Vol-I, 196-97. 579 UN, Baselines: An Examination, (1989), para 39 at 21. 580 UN, Baselines: An Examination, (1989), para 38 at 18.
130
―The method of straight baselines, which is an exception to the normal rules for the determination of baselines, may only be applied if a number of conditions are met. This method must be applied restrictively.[.....]‖581.
Travaux Preparatoires
In case of Article 7, much support cannot be mustered from preparatory work of UNCLOS due to scarcity and sometimes non-availability of systematic official record like ILC work and TSC. Since incorporation of UNCLOS provision on straight baselines had been received via Fisheries case and TSC, a slight support may be sought from these documents.
During the negotiations of 1958 Geneva conferences, Mr. Sikri, Indian delegate referring ILC‘s commentary to Article 5 and Anglo-Norwegian Fisheries case had proposed considering of "minor curvatures of the coastline" for drawing straight baselines and suggested that the same was preferable. He objected to the proposing of phrase ‗coast deeply indented as a whole‘‘.582
Fitzmaurice, UK delegate accepted the change of excluding words ‗as whole‘ in the phrase. He added that ―In localities‖; the intention was to exclude the application of the straight baseline method in cases of isolated curvatures of a coast‖.583 He added that where coast was not deeply indented but only had a minor curvature did not justify drawing of straight baseline. If, however, there was deeply indented coast, it was justified to choose straight baseline system and across minor curvature as well.584
The criteria remained problematic since the inception of concept deeply indented. US criticized ILC draft mentioning ‗deeply indented or cut into‘ is repetitive, relative and without any legal meaning.585
581 Qatar/Bahrain Case, Merits, 2001 ICJ 40, at 67, para 212. 582 UNCLOS-I, Vol-III, 158 Para 50. 583 Ibid., 159 para 52. 584 UNCLOS-I, Vol-III, 157 para 30. 585 Ibid., para 1(d) at 235.
131
Subsequent State Practice
UNCLOS is one of the maritime conventions which influenced the national policies and legislations. However, the presence of ambiguities and vagueness in its provisions could not promote a consistent and uniform norm creating state practice. State practice being the basic element of international law has two paramount functions; evolving customary international law and an important tool for treaty interpretations.586 State practice may have political and legal impacts587 but certainly this work is concerned with its legal impact. There are a number of provisions and regimes in the UNCLOS which have acquired the status of customary international law588.
The straight baseline as a system has also risen to the customary law status. Nevertheless, criteria and application of straight baselines principles have no uniformity in state practice. Uniform state practice on the drawing straight baselines is missing at international as well as at regional level. The practice of state is so divergent, deviating and inconsistent to create customary norm. The majority of states employing this system of baselines have resorted to liberal interpretation of its parameters best suited to her and sometimes even without any justification.
The uniformity in practice of states is not on any objective criteria but only on adopting this system for limitation589 and delimitation590 process. The existing state practice on straight baselines, regionally and internationally, is too varied to
586 A. Mark Weisburd, The International Court of Justice and the Concept of State Practice, 31 University of Pennsylvania Journal of International Law 295-372 (2009) at 295. 587 Churchill, “Impact of State Practice” (2005), 108. Also in Tanaka, International LOS, (2012), 93. 588 Qatar/Bahrain Case, Merits, Judgment, ICJ Reports 2001, p. 40 para 167. 589 Limitation is aimed at delineation of states maritime boundaries in isolation, not having contact with any other coastal State. Source: Dupuy and Vignes, Handbook on LOS, Vol-I, (1991), 426. 590 Maritime delimitation is an operation to be effected between two or more States, as its object is to separate overlapping areas where legal titles of coastal States compete and each State attempts to exercise spatial jurisdiction over the same maritime space making the process international in character. Source: Pal Jakob Aasen, The Law of Maritime Delimitation and the Russian-Norwegian Maritime Boundary Dispute, FNI Report 1/2010, 6.
132 provide any rule of generality. The issue of geometric and objective criteria for straight baselines is not to be considered only the scholarly debates as it is bound to generate practical impinging on international arena. The state practice evolved may gradually assume the form of opinio Juris591 and customary law. The non-evolving of uniformity on straight baselines criteria augment the liberal application and practical disregard to the provisions of UNCLOS which are ambiguous.
The coastal state practice world over has emerged on contradicting the criteria of straight baselines enshrined in Article 7 in variety of ways. Even the states which ardently snub and criticize violations of strict application of straight baselines are not free from their multifaceted and multifarious individual interests. Finding state practice leading to some normative value is scarce but tendencies of centrifugal attitude from laid down straight baselines principles have a quite clear demonstration. Disconnection is evident on the face between the state practice and the principle enunciated in UNCLOS. The general trend is not to follow the straight baselines application in strict sense, rather flexible interpretation for liberal employment of this system.
Cut Into
The phrase ‗cut into‘ got its way into Anglo-Norwegian case to UNCLOS via TSC. The emphasis on ‗cut into‘ in Article 7(1) along with deeply indented has same vagueness and ambiguity. There is no precision available either subjectively or objectively on criteria of term ‗cut into‘ for its practical application. Different methods of interpretation have to be accumulated to reach on a possible clarity. It is not easy to comprehend as to what is exactly meant by the term ‗cut into‘. The geographical nature of cut into coast, length and breadth standard and how many cuts are required to qualify test of this criterion is unclear.
591 It is the acceptance of a practice as sufficient to create legal obligations. Source: http://www.duhaime.org/LegalDictionary/O/OpinioJuris.aspx (accessed on 29 August 2013).
133 On cursory reading the phrase ‗cut into‘, when read in conjunction with deeply indented, appears superfluous. The minute examination of ‗cut into‘ reflects a heavy emphasis on the severity of irregular configuration of the coast. It would be reasonable to find out the meanings of the phrase in the light of Norwegian coastal configuration from which the ICJ conceived the idea of this phrase.
If both the words ‗deeply‘ and ‗indented‘ are joined together they connote that it means an extraordinary depth (cut) in the coast. The meanings clearly rule out the minor curvatures. It is significant to note that deep indentation forms integral part of cut into. That is the reason, the conjunction ‗and‘ has been used to conjoin the phrase to read ‗deeply indented and cut into‘. If the intention of the negotiators and drafters was to use each term separately, phrase should have read; ‗deeply indented or cut into‘. Now the term cut into is discussed in the light of principles of interpretations.
Ordinary Meanings
In ordinary meaning of the word ‗cut‘ means, ―make an opening, incision, or wound with a sharp tool or object‖.592 Legally means ―a long narrow opening in a surface‖593. Merriam-Webster‘s Dictionary defines ‗cut‘ as ―an opening made with an edged instrument; a creek, channel, or inlet made by excavation or worn by natural action‖.594
The preposition ‗into‘ denotes; ―an expressing motion or direction to a point on or within‖.595 It connotes; ―From the outside to the inside of; toward and within‖.596 The term ‗cut into‘ was taken from Anglo-Norwegian case into TSC and UNCLOS without any elaboration. Just like deeply indented, the term cut
592 Catherine Soanes and Angus Stevenson Ed., Concise Oxford English Dictionary, 11th Ed., (New York: Oxford University Press, 2004), 354. Hereinafter “Soanes and Stevenson, Concise Oxford Dictionary, (2004)” 593 Brown, Shorter Oxford Dictionary, (1993), 577-578 594 Merriam-Webster’s Collegiate Dictionary, 11th ed., (USA: Merriam-Webster, Incorporated, 2004), 308. Hereinafter “Merriam-Webster’s Dictionary, (2004)” 595 Soanes and Stevenson, Concise Oxford Dictionary, (2004), 745. 596 Webster’s Dictionary, (1977), 962.
134 into does not carry precise meanings and categorical legal interpretation. The term bears no legal precision and so the meanings.597 UN study demands that there should be ‗several indentations‘ in a coast to qualify individually to fall into cut into criterion.598 The term ‗several‘ itself does not have any precise literal or legal meanings.
In ordinary appreciation the term ‗several‘ means ―more than two, but not many‖.599 It means ‗consisting of a number more than two, but not many; of an indefinite but small numbers; few‘.600 The law dictionary defines it as, ―Separate; individual; Independent‖.601 In legal sense ‗several‘ means ―more than one‖.602 It means, ‗more than one or two but not a lot‘.603 US takes a stance that for fulfilling cut into conditionality, the coastline must have minimum of three indentations.604 US view point apparently seems valid on common understanding when term cut into is interpreted in the context of deeply indented as it is considered putting more emphasis on already exceptional configuration of the coast. Nevertheless, legal interpretation does not convincingly support three indentations.
Westerman and Reisman while insisting on more than two indentations for cut into believe that interpretation in strict sense of ‗several‘ and ‗cut into‘ would help in preventing straight baselines abuse.605 Roach and Smith lend support to the existence of deep indentations that too at-least three.606 Beazley and Prescott have supported the opinion of Roach for the presence of at least three
597 Reisman & Westerman, Straight Baselines, (1992), 82. 598 UN, Baselines: An Examination, (1989), Para 36 at 18. 599 Source: http://www.oxforddictionaries.com/definition/english/several (accessed on 13 November 2014). 600 Webster’s Dictionary, (1977), 1662. 601 Source: http://thelawdictionary.org/several/ (accessed on 13 November 2014). 602 Brown, Shorter Oxford Dictionary, (1993), 2799. 603 Garner, Black’s Law Dictionary, (1999), 1378. 604 LIS (1987), No. 106, 5. 605 Reisman & Westerman, Straight Baselines, (1992), 82. 606 J. Ashley Roach and Robert W. Smith, Excessive Maritime Claims, 3rd Ed., (Netherland: Koninklijke Brill, 2012), 61. Hereinafter “Roach and Smith, Excessive Maritime Claims, (2012)”
135 indentations in the coast.607 Vagueness leads to different interpretations providing variety of choices to the parties to UNCLOS. This erosion is manifested in the language of Article 7 of UNCLOS in general and Article 7(1) in particular. It appeals to mind that from the phrase ―deeply indented and cut into‖ as a consolidated phrase, the intention of its framers, seems that they wanted an extraordinary coastal configuration having more than one indentation. Generally the deeply indented with cut into coastal situations is not restricted to one or two isolated indentation. Usually such deep indentations are coupled with some minor curvatures to complement minimum two indentations.
Object and Purpose
The purpose of whole the phrase is to finish off the complexities and irregularities of coasts by allowing straight baselines where coastal states face this situation. The principles laid down in the fisheries case have been strictly inherited in the subsequent conventions. The Norwegian coastline, if not unique, is fairly rare in its configuration and construction. Situating this configuration to other coastal states may neither be feasible nor is likely to be followed by the states in their practice.
At the same time it might not be the objective of straight baselines provision to draw whimsical lines for appropriating more expanses seaward. The phrase was initially drafted to read; ‗deeply indented or cut into‘ as is available in ILC draft adopted by in its 8th session.608 It was aimed at providing some degree of flexibility. It also shows that the term deeply indented had been understood to be different from term cut into. Beazley contends that ―deeply indented and cut into‖ does not refer to isolated one or two indentations irrespective of their large size.609 Contextual interpretation suggests that the criterion in the spirit of bay610 would be adopted in case of a single cut into situation in the coast.
607 Prescott, Straight Baselines: Theory and Practice, 4. 608 UNCLOS-I, Vol-III, 209. 609 Beazley, Maritime Limits and Baselines, (1978), 8. 610 UNCLOS, Article 10.
136
Travaux Preparatoires
A little help can be mustered from preparatory work of UNCLOS due to the obvious reasons discussed in Travaux Preparatoires for deeply indented issue. Some assistance can be had from the work of ILC and UNCLOS-I whose provisions on baselines were taken as prototype in UNCLOS. The ‗deeply indented and cut into‘ principle was introduced by Mr. Francois, the special rapporteur,611 in his draft formula on straight baselines. It was a new addition and was not part of draft presented by The Hague Conference.
Amado, member from Brazil, disagreed with the stance of Francois and emphasized that the criteria as well as future application of ‗deeply indented and cut into‘ would prove difficulties and doubts. The states would draw their baselines according to their interests and in manner suited to them and not in consonance with international law. The states would employ straight baseline method and would try to justify their claims being in accord with the corresponding definition.612
The ambiguity and vagueness of straight baseline terms had been pointed out by Lauterpacht much before codification in the form of a convention provision.613 Yepes, ILC member from Colombia, posited that achieving a universally applicable solution was not possible due to wide variation in the coastal configurations of states.614 In the fisheries case, the court too did not provide any solution because it related to a coast which had these individualistic characteristics. He stressed on some flexible formula for application appropriately to each case.615
Iceland, through a note verbale (diplomatic note) to ILC, communicated that the experts consulted during the drafting of Article 5 (concerning straight baseline
611 ILC Yearbook, 1952, Vol-I, para 35 at 172 612 ILC Yearbook, 1952, Vol-I, para 30 at 171. 613 Ibid., para 46 at 174. 614 Ibid. 615 ILC Yearbook, 1952, Vol-I, para 50 at 174.
137 conditions) were not experts in international law but in geography. The members had been almost entirely nominated from Western Europe who had been favouring limited coastal jurisdiction. Paragraph 2 of draft616 in particular is absolutely unacceptable to the Government of Iceland and should be deleted.617 The Britain government did not support the encouraging of drawing straight baselines on local or regional consideration rather adoption of uniform rules for applying such system of baselines.618 US recorded that ILC phrase ―deeply indented or cut into‖ was relative and repetitive to have legal meaning.619 US suggested that ―bay‖ is the proper legal term instead, which would provide precision to the rule in accordance with the judgment in the fisheries case.620 Efforts to define the phrase could not succeed due to the mathematical precision necessitated.621
Fitzmaurice expressed that ‗deeply indented and cut into‘ concerned with exceptional coasts like Norway and a few other countries. On the contrary ‗bay‘ criterion applied to other maritime countries not having exceptional coastline as practically there were no coasts without bays.622 During the Twentieth plenary meeting delegates from Japan and Netherland pointed out the vagueness of straight baseline terms. They proposed that states would not be undertaking obligations without guarantees of arbitration or compulsory jurisdiction as was adjudicated in Anglo-Norwegian case. Their joint proposal for referring these disputes to ICJ could not get two-third623 majority for approval.624
616 Article 5(2) of draft ILC on the Regime of Territorial Sea concerning “the limitations regarding maximum length of straight baselines, the distance of baselines from the coast and the use of drying rocks and shoals”. 617 ILC Yearbook 1955, Vol-II, 46-47. 618 Ibid., p-56. 619 UNCLOS-I, Vol-III, 235. 620 UNCLOS-I, Vol-III, 235. 621 UNCLOS-I, Vol-III, 159.ILC Yearbook 1952, Vol-I, para 38 at 172. 622 ILC Yearbook, 1955, Vol-I, para 77 at 212. 623 The voting result was 29 in favour and 28 against, with 4 abstentions. Source: UN Conference on the Law of Treaties, Official Record, Vol II, (1958) para 3 at 65. 624 Ibid., para 2 at 65.
138 Subsequent State Practice
The preparatory work of ILC and negotiations for the conferences on law of the sea are evident that no uniformity in the application of straight baselines existed in the state practice. ILC received severe criticism for not drafting specific rules on straight baselines which it could not do due to the inherent intricacies involved in the issue.625
The state practice on the delineation of straight baselines is as divergent as the coastal configuration of individual states. The idea of straight baselines evolved from very specific features of Norwegian coast. Some states which were proponent of optimum freedom of sea demanded strict interpretation of the rule declared by the court in fisheries case. Contrary to this, the faction of other coastal states demanded for extreme flexible view of the court verdict. The clear dividing line on parameters of straight baselines is evident from early days‘ negotiations for the formulation of uniform rules for standard application. As the task was very challenging no uniformity could be brought for an objective test on straight baselines. It would not be wrong to say that states mostly preferred not to follow the straight baseline principles rather applied straight baseline system to their coasts and then tried to justify them under this regime.
A general examination of the state practice on following ‗cut into‘ and deep indentation‘ requirement shows a disregard or rejection of these criteria. Local as well as regional practice seems purely tinged in the vested interests of states. Uniformity is missing on any agreed upon criteria. Nonetheless, uniformity is undoubtedly converged on inconsistently setting aside the spirit of Article 7 of UNCLOS relating to cut into estimation. When legal sources of Article 7 like TSC and Fisheries case did not provide procedural bounds categorically, the state practice could be another prime source to bank upon.
It is neither possible nor the object of this research is to encapsulate the practice of individual states. The purpose is encompassing the practice of states in
625 UNCLOS-I, Vol-III, 69.
139 general. The state practice has been found divergent and deviating from the conditions stipulated in Article 7 of UNCLOS.626 It is but natural that when there is choice between individual state interests comparing community interests, states hanker after their domestic and local advantages. The adopting of this system of baselines by extra flexibility or some times by unjustifiable interpretation of the laid down ground rules may not be attributed only to any particular region. This is, however, true that in some regions the divergence is more glaring than other regions in comparison. This phenomenon may be ascribed to different underlying factors like geographic locations, rivalries, strategic importance, advantages for bargaining during delimitation with neighbouring states etc.
Analytical Evaluation of “Deeply Indented and Cut Into” Coasts
The UN study has made a very valid point that the criteria for a situation of coast may be either absolute or relative.627 Prescott and Schofield note628 that ―there can be no doubt that the term ‗deeply indented‘ must have both an absolute and a relative meaning. […..] it is possible that ‗deeply indented‘ refers to horizontal penetration of the land and ‗cut into‘ refers to vertical incision.‖ Absolutely clear parameters are not available to provide guidance with arithmetical precision for the use of baselines in this system. Tanaka asserts this vagueness of article terms re-emphasizing that, ―There is no objective test that may identify deeply indented coasts.‖629 The pendulum has always swung between strict and flexible criteria for the application of this system of baselines.
The holistic approach of Article 7 reveals that a heavy reliance has been placed on Article 7(1) which provides two basic pillars on which the whole edifice of straight baseline system rests. These are; ‗deep indentation coupled with cut into‘ or a coast having ‗fringe of islands‘. Amongst these two pillars the former stands out distinctive due to its overwhelming application and utilization.
626 ILA, Committee on Baselines, (2014), Para 32. 627 UN, Baselines: An Examination, (1989), para 40 at 21. 628 Prescott and Schofield, Maritime Political Boundaries, (2005), 145. 629 Tanaka, International LOS, (2012), 49.
140 US are the only country whose national and general policy is against the use of straight baselines.630 US Supreme Court unequivocally declared that the use of straight baselines is permitted for the US but this option is vested in the Federal government.631 US have been the persistent objector to straight baselines drawn by the various states. Her position on the coastal indentation criteria appears very strict. To have legitimacy for straight baseline, US requires the existence of minimum three deep indentations having close proximity with one another and each indentation depth must be more than half the length of baseline.632 The UN study requires that indentation should qualify semi-circle test633 prescribed for the bay in order to come into the ambit of deep indentation.634 Roach and Smith suggest stricter geographical standard for ‗deeply indented and cut into‘ comparing a juridical bay.635 Reisman and Westerman take a hard stance and emphasize on a strict criteria observing;
―However it be construed, it is plain that the test requires that the conjunction of deep indentation and being cut into to be cumulative. In the locality under consideration, thereof, there must be a number of deep indentations such that the coastline appears to be cut- into‖636.
The fjords in the coast of Norway are quite deep having distinctive coastal configuration.637 It is commonly argued that in case of Norway‘s coastline all fjords were deeper than 1:2.638 Reisman and Westerman analyse that comments of judges, individually, in the fisheries case divulge that out of total twelve judges only five found the legality for unilateral claims of states to straight baselines. Contrary to US point of view of persistent objections, their critics also hammer
630 US, United States Responses to Excessive National Maritime Claims, LIS No. 112, (1992), 23. 631 United States v California, 381 U.S. 139 (1965), 168. 632 LIS (1987), No. 106, 6. 633 [.....] An indentation shall not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation. Source: Article 10(2) of UNCLOS. 634 UN, Baselines: An Examination, (1989), section 36, p. 18. 635 Roach and Smith, Excessive Maritime Claims, (2012), 62. 636 Reisman & Westerman, Straight Baselines, (1992), 82. 637 Anglo-Norwegian case, 127. 638 Prescott, Straight Baselines: Theory and Practice, 8. Also in Beazley, Maritime Limits and Baselines, (1978), 4.
141 heavily on US, particularly, the Chinese scholars like Zhiguo and Dingli. The leading critic of US point of view, Haiwen argues that US has not yet ratified UNCLOS and it would be unfair to all Coastal States, if US puts forward arguments on interpretation of this Convention.‖639 She continues her arguments by questioning the non-ratification of UNCLOS by US and calls the military activities of US in the sea as a global hegemony for strategic interests.640
Conduct of the states before the formulation of straight baseline system, during the negotiations of TSC, UNCLOS and the state practice post these conventions, all reflect a very individualistic trend. The points of departure which existed before the conclusion of UNCLOS continued during the declarations of states at the time of ratification. It is still visible in practice on the application of ―deeply indented and cut into‖ post conclusion of UNCLOS. Uniformity in observation of criteria is certainly missing but divide between the states is consistent on the textual interpretation and employment of these principles. Norway had already proclaimed straight baselines on her Northern and Southern part before 1952. She followed this practice around the Jan Mayen perimeter in entirety in disregard to the ICJ decision on fisheries case, despite the coast being smooth, not indented and free from fringe of islands.
Some other countries which included Algeria, Egypt, Finland, Iran, Kenya, Morocco and Saudi Arabia followed the pursuit even before 1958.641 Based on the Anglo-Norwegian case and input of technical experts, US study concludes that the fisheries case influenced the drafting of Article 4 of TSC. However, the case provides very limited assistance to guide. The Norwegian coastline has extraordinary features due to the presence of number of deeply penetrated fjords
639 Zhang Haiwen, Is It Safeguarding the Freedom of Navigation or Maritime Hegemony of the United States?-Comments on Raul (Pete) Pedrozo’s Article on Military Activities in the EEZ, 9 Chinese Journal of International Law (2010), 31 at 35. 640 Ibid., 45. 641 Prescott and Schofield, Maritime Political Boundaries, (2005), 140, unnumbered para 3. Also ILA, Committee on Baselines, (2014), Para 32. Also in Tanaka, International LOS, (2012), 48.
142 and offshore islands. It is assumed that the purpose of Article 4 of TSC was to allow the states with less extreme coastlines to adopt these criteria.642
It is worth noting that criteria provided in Article 7 for employing straight baselines is ‗substantive‘ in nature whereas the criteria outlined for juridical bay in Article 10 of UNCLOS is more of a procedural nature. Deduction of qualifying semi-circle test in case of indented coast which only emphasizes on the gravity of coast may not be appropriate. If it is agreed that the spirit of the article is at least two or more than two indentations in a coast to qualify for drawing straight baselines, it would amount to practical nullity of this system for a large number of states. It is considered that too much flexibility and too much rigidity is likely to lead to practical disregard of the principles enshrined in UNCLOS. Avoiding idealism and providing some objective criteria for application of straight baselines under UNCLOS may help in preventing very flexible usage of this system. It may help in controlling and encouraging states to revise their excessive claims in conformity with objective criteria so established.
A glance at the language of Fisheries case judgment and Article 7 of UNCLOS appear to mirror each other in spirit. The relevant passage of the judgment reads; ―Where a coast is deeply indented and cut into, as is that of Eastern Finnmark, or where it is bordered by an archipelago such as ‗skjaergaard‘.643 The court used the word ‗skjærgaard‘ which was replaced with the phrase ‗fringe of islands‘ in the TSC as well as UNCLOS. Similarly, the phrase ‗covered by the skjærgaard‘ in the judgment was changed with immediate vicinity to portray proximity of islands to mainland in both the conventions. Another important change brought about in Article 7 is the use of word ‗may‘ for choosing to draw straight baseline system. The judgment of court says that in such localities, ―the baseline becomes independent of the low water mark and
642 LIS (1987), No. 106, 7. 643 Anglo-Norwegian case, 128-129.
143 ‗can‘ no longer be put forward as a rule requiring the coast line to be followed in all sinuosities‖.644
The ILC draft before the conclusion of TSC used the phrase, ―deeply indented or cut into‖.645 Article 7(1) is vague both; quantitatively and qualitatively. Attorney General of Australia, during a ministerial statement, on October 31, 1967, expressed his government policy. He required three deep indentations for drawing straight baselines around the Australian coast not exceeding 24 NM except for deeply indented or cut into coastline with no appreciable general direction departure.646
Article 7 of UNCLOS deviated from Anglo-Norwegian Case that it permitted the use of LTE as base-points for employing of straight baselines only if such elevations bore installation of permanent nature on them. In Norwegian case the court permitted the use of low-tide elevation as legitimate base-points. The ICJ did not require the housing of any lighthouse infrastructure by LTE that too above water at high tide.
Conclusion
The whole discussion in the chapter brings to five conclusions; firstly, the criteria provided in Article 7 of UNCLOS is ambiguous and without any objective test. Secondly, the UNCLOS article on straight baselines neither provides clear definition of terms nor any objective criteria for guidance. Thirdly, allowance of straight baselines is a reality but is not intended for its employment arbitrarily on coasts which have regular features. Fourthly, flexibility in the interpretation of article terms would compound and encourage more and more arbitrary application of straight baseline system. Fifthly, very strict interpretation may lead to frustration and ultimately a complete disregard by the interested coastal states.
644 Anglo-Norwegian case, 129. 645 ILC Yearbook 1956, Vol-II, 267. 646 United Nations, National Legislative Series, ST/LEG/SER.B.15, 1970.
144
The suggestions by the delegates at UNCLOS-III to read the phrase, ‗deeply indented or cut into‘ instead of ‗deeply indented and cut into‘ did not find support. It shows that states were touchy on the rigidity of not only on drawing straight baselines but even on the wording of the new instrument. The conjunction ‗and‘ in place of ‗or‘ had been added in TSC and UNCLOS as a force multiplier. The over emphasis undoubtedly suggests that the indentation should not be a mere curvature but should be deep and wide enough to satisfy the condition. The minor or isolated curvatures do not fall into this phrase for qualifying straight baseline system. To come into this category of coast it needs to fulfil qualitative as well as quantitative criterion.
The ordinary meanings, object, purpose, preparatory work or subsequent state practice do not provide support in the determination of precise or arithmetical objective test for the straight baselines criteria. The majority state practice is not willing to follow the strict criteria and contrarily some scholars and countries like US are adamant on strict compliance on the pattern of Norwegian coast. The solution rests between the two extremes. At least one big indentation qualifying the bay standard with at least two minor curvatures should suffice. In the spirit of legal connotation of ‗several‘ indentation, two indentations should suffice for satisfying deeply indented criterion.
The second permissive criterion for the drawing of straight baselines is on the coast fringed with islands in the immediate vicinity. The comprehension of ‗islands‘ as entity is must before delving on the criterion of the presence of ‗fringe of islands‘. The next chapter, therefore, deals with insular features for convenience of understanding.
145 CHAPTER 7
ISLANDS AND ROCKS
Before exploring phrase ‗fringe of islands along the coast in immediate vicinity‘ it is apposite to dedicate some discussion on islands and rocks for understanding of their general and legal status. The insular features or in UNCLOS language the islands or Low-Tide Elevations (LTE) have impacted on the status of maritime delimitations for decades. The key role of the regime of islands for zoning of maritime spaces has been acknowledged by the legal and technical experts alike. The legal status of insular features regarding their consideration as islands or as continental lands or according special status to them has remained debatable.
The provision on the islands was introduced for the first time in Article 10 of TSC. The issue of islands was negotiated threadbare during UNCLOS-III too however, the states took different positions without any consensus. The provision in TSC was inherited verbatim by the UNCLOS as Article 121. It is important to establish as to what is ‗island‘ in reference to the drawing of straight baseline. Does law of the sea include islets, cays, rocks, reefs, sandbars, temporary islands (chars), sandbanks and barren islands in the definition of islands? What status does international law offer to the artificial islands or man-made structures? What is the status of offshore formations as base-points for employing straight baselines? Disputes arise between the states if a formation is treated dubious by one state and considered island by the other state. The relation of islands and other similar features with the construction of straight baselines and part they play needs to be identified. The position of different offshore features is discussed from the prism of international maritime law.
Islands
The legal definition of ‗island‘ was recognized at international law and was
146 pitched at Hague conference.647 Hague conference presented the draft article on islands which reads; ―An island is an area of land, surrounded by water, which is permanently above the high-water mark‖.648 The efforts continued to define island, both on writers and jurists‘ front as well as by the public and private organizations. ILC used the draft definition of Hague Conference as a platform to proceed with the refining process.649 The legal status of islands whether being part of continental land or otherwise has remained arguable issue amongst the states and the publicists alike. Islands have a lot of legal and administrative repercussions for the individual states and overall on international community. The definition of the word ‗island‘ is deliberated from various perspectives.
Ordinary Meanings
The ordinary meanings of word ‗Island‘ are; ―A piece of land completely surrounded by water‖.650 Webster dictionary defines island as, ―a tract of land not as large as continent, surrounded by water, whether of the sea, a river, or a lake.‖651 Island is ―a tract of land surrounded by water but smaller than a continent; especially, land that is continually surrounded by water and not submerged except during abnormal circumstances‖.652 These definitions almost converge that island is an insular feature which is surrounded and is above the surface of water all the times, certainly sea-water for this research project.
The term island has been used a number of times in Anglo-Norwegian case without tendering any definition. The islands have remained subject to international adjudication at number of times between the states. In
647 UN, Official Documents – Conference for the Codification of International Law, 24 AJIL 1 (1930), pp. 1-80 at 35. 648 Acts of the Hague Conference, 1930, Vol-III, 219 cited in Clive Ralph Symmons, Some Problems Relating to the Definition of 'insular Formations' in International Law: Islands and Low-Tide Elevations, Maritime Briefing, Vol-I, Number 5, (IBRU: 1995), 15. 649 Andrew Jacovides, “Regime of Islands” (lecture, Rhodes Academy of Oceans Law and Policy, July 5, 2013) available at http://icmu.nyc.gr/%20regime-of-islands(accessed on 6 September 2014). 650 Oxford Dictionary, Vol-III, (1969), 503. 651 Webster’s Dictionary, (1977), 973. 652 Garner, Black’s Law Dictionary, (1999), 835.
147 Guinea/Guinea-Bissau case,653 the ICJ categorised the islands into; the coastal islands,654 the Bijagos islands or islands scattered over shallow areas. In Qatar/Bahrain case the matter of sovereignty of islands in oil resourced rich area was brought before the ICJ. Taking into account different aspects, ICJ ruled that the small Qit‘at Jaradah Island sufficiently supports Bahrain‘s claim of sovereignty over it.655 In another case, ICJ ignored the relevance of ―tiny islands, uninhabited rocks or law-tide elevations, sometimes lying at a considerable distance from terra firma656[.....]‖.657
State Practice
The state practice on the consideration of islands for delimitation has been flexible. Compromises on status of islands during delimitations between the states comparing straight baselines are well evident. States have shown a flexible tendency for ignoring small islands or islets to materialize delimitation of their maritime boundaries. In India-Sri Lanka agreement on maritime boundary, the small islands of Adam‘s Bridge had been discarded for delimitation purposes.658
Similarly in Iran-Qatar delimitation of maritime boundary, small islands had been disregarded.659 Denmark and Sweden ignored even larger island, the Ven, while negotiating the boundary settlement.660 Contrary to this, the practice in South-China Sea is somewhat competitive. Coastal states have been contesting for claims on various small islands and islets due to other factors more than just economic and jurisdiction. Islands serve two purposes; entitle maritime zones and as base point for employing straight baselines.
653 Award by the Arbitral Tribunal on the Maritime Delimitation between Guinea and Guinea- Bissau, 1985 RIAA, Vol-XIX, pp. 148-196. 654 Separated from the continent by narrow sea channels or narrow watercourses and are often joined to it at low tide. Source: Ibid. p. 2. 655 Qatar/Bahrain Case, Merits, Judgment, ICJ Reports 2001, p. 40, at 99-100, para 197. 656 A firm or solid earth; dry land (as opposed to water or air). Source: http://dictionary.reference.com/browse/terra+firma (accessed on 14 March 2014). 657 Gulf of Maine Area Case, Judgment, ICJ Reports 1984, p. 246, Para 201. 658 US, Maritime Boundaries: India-Sri Lanka. LIS No. 77 (1978), 9. 659 US, Continental Shelf Boundary: Iran-Qatar. LIS, No. 25 (1970), 3. 660 US, Territorial Sea Boundary: Denmark-Sweden. LIS, Series A, No. 26 (1970), 2.
148
Travaux Preparatoires
Travaux preparatoires in the case of legal status of insular formations under UNCLOS is as usual unclear and meagre. Intent of drafters in Article 121 of the UNCLOS is not traceable to offer clarity. Examination and insight of the UNCLOS-III records only provide variety and diversity of opinions and suggestion on this issue. The states negotiated the insular features from a protracted national or at the most from sub-regional approach. As in most of the cases during the discussion of UNCLOS the clear dividing line was visible mainly between two groups of states. A faction of states contending for minimizing the impact of small insular formations on maritime jurisdictional claims and other group having all out support for maximizing maritime jurisdictional claims.
The legal status of islands had a special attention of the states during UNCLOS-III negotiations. Nine years‘ efforts resulted in addition of a single provision on the regime of islands in the UNCLOS.661 Different states had different proposals concerning status of island vis-à-vis mainland for generation of maritime area.662 Article 121(1) entered into UNCLOS from Article 10 of TSC without any change. Article 121(1) of UNCLOS describes; ―An island is a naturally formed area of land, surrounded by water, which is above water at high tide‖.
Analytical Evaluation of Islands
The examination of the definition of island unfolds four constituent elements. First, an entity must have a ‗natural formation‘. Second, it must be an ‗area of land‘. Third, it must be ‗surrounded by water‘. Fourth, such formation of land should be ‗above water at high tide‘. The drafters‘ intentions, from phrase naturally formed, seem clear that they wanted to exclude LTE, artificial ‗islands‘, platforms constructed (on submerged features) shoals, or reefs.
661 UNCLOS, Article 121. 662 Michael W. Lodge and Myron H. Nordquist, Peaceful Order in the World's Oceans: Essays in Honor of Satya N. Nandan, (Netherland: Koninklijke Brill: 2014), 73-76.
149
Article 60(8) of UNCLOS clarifies that artificial islands, installations and structures do not have island status. Artificial islands bear special exclusion from having maritime jurisdictional expansions.663 It means that in narrow sense the only islands admissible under this article are ‗naturally formed‘. The requirement of the composition of island being ‗an area of land‘ is not free from ambiguity, though apparently it looks straight forward. In cases where states have mutually agreed, smaller insular formations submerged at high tide have been accepted. Sometimes larger islands have been discarded through mutual consent of states. There are instances664 where definition of island proved problematic when interpreted differently by the contesting parties to a dispute.
The requirement of ―surrounded by water‖ does not carry much differences of opinion or interpretations. In majority of cases it has not sparked disputes and is regarded self-evident. The issue may generate controversies in deltaic coasts having feature like sandbars665. Although UNCLOS provision does not expressly state that the land formation should be surrounded by sea water. The last phrase‘ above water at high tide‘ clearly hints at islands in the sea. Article 121(2) and (3) further qualify the type and status of islands concerning generation of their entitled maritime zones. The quantitative bounds of phrase ―above water at high tide‖ are not clarified in the UNCLOS. How much above water at high tide an island should be is a vague criterion?
Malaysia/Thailand continental shelf boundary negotiations had a deadlock over use of a rock, KoLosin by Thailand in the Gulf of Thailand. Malaysia objected to the use of this rock for delimitation, which situates 39NM off Thailand, being
663 UNCLOS, Article 60(5). 664 Example is dispute between Alaska vs. US on Dinkum Sands, lying off the Alaskan Arctic Ocean coast, composed of layers of sea ice and gravel. The dispute arose whether formation’s vertical height made up of ice could be counted when testing the feature against the “above water at high- tide” provision. Clive Ralph Symmons, When is an ‘Island’ Not an ‘Island’ in International Law? The Riddle of Dinkum Sands in the case of US Vs. Alaska, Maritime Briefing, Vol-2, No. 6 (IBRU: 1999), 1. 665 A ridge of sand built up by currents especially in a river or in coastal waters. Source: http://www.merriam-webster.com/dictionary/sandbar (accessed on 6 June 2015).
150 only 1.5 meters above water at high-tide.666 Due to the non-availability of a universally accepted tidal datum, the tidal level is crucial667 for the distinction between non-insular features,668 islands669 and low tide elevations.670 Leaving choice of tidal datum on the discretion of a coastal state may lead to controversies. Once it is accepted that an island needs to be above water at high tide, a question may arise whether permanently or not? The answer may be that in normal circumstances the island should be permanently above water at high tide. However it should have exceptions like cyclones or storms which should in no way diminish the normal characteristics of an insular formation.
Reisman and Westerman have taken a strict stance that introduction of Article 121(3) to UNCLOS brought a change in international law. Contextually they interpret that some of islands having fringes must fulfil the pre-requisites; human habitation and their own economic life in consonance with Article 121(3).671 This interpretation does not seem logical as the category of islands mentioned in Article 121(1) and (3) are different in their functions and characteristics. They have different capacities for the entitlement of limitation for various zones due to their features. The islands for the purpose of fringing have to do nothing with the quality of islands which is relevant only for the generation of maritime zones. The only prerequisite for a fringed coast should be the islands of either kind which simply mean; a portion of land surrounded by sea water and visible at high tide. More precision on ‗regime of islands‘ could not materialize in the UNCLOS and states agreed on this very concise provision in the form of Article 121 out of 320 Articles of UNCLOS. Brown contends that
666 Sun Pyo Kim, Maritime Delimitation and Interim Arrangements in North East Asia, (Leiden: Koninklijke Brill NV, 2004), para 2.3 at 99. 667 Carleton, C.M. and Schofield, C.H., Developments in the Technical Determination of Maritime Space: Charts, Datums, Baselines, Maritime Zones and Limits, Maritime Briefing, Volume 3, No.3 (IBRU: 2001), 21. 668 Remain submerged even at low-tide. 669 Above water on high-tide. 670 Above water at low-tide but submerged at high-tide. 671 Reisman & Westerman, Straight Baselines, (1992), 84-85.
151 efforts to exclude smaller bodies, rocks and inhabitable islets from the definition of island could not succeed.672
On 7 July 1982, in reply to a question in the House of Commons, Mr, Rifkind, the Parliamentary under-secretary of State, Foreign and Commonwealth Office, answered;
―The Law of the Sea Convention states that rocks which cannot sustain human habitation and economic life of their own shall have no exclusive economic zone or continental shelf. During the negotiations on the Convention, we and some other delegations sought unsuccessfully to delete this provision‖.673
The purpose behind discrimination between the islands which possess human habitation sustainability or economic life independently and those that do not qualify this test was not regarding the condition for fringing islands. The difference was aimed at avoiding large appropriation of sea areas into coastal jurisdiction of states due to limitation of zones. It is not difficult to conclude that quality of islands does not matter for the condition of fringing. The islands which do not submerge on high tide are islands to validly constitute the fringe the coast for the purpose of drawing straight baselines.
Rocks
UNCLOS Article 121 mentions about two entities; islands and rocks distinctly. Without getting into the merits, characteristics and qualitative peculiarities, it is self-evident that both features are not same. Rock means, ―A large rugged mass of stone forming a cliff, crag, or natural prominence on land or in the sea‖.674 Merriam Webster‘s dictionary defines Rock as, ―A large mass of stone forming a cliff, promontory, or peak.‖675
672 E. D. Brown, The International Law of the Sea, Vol-I, (Aldershot: Kluwer Law International, 1994), 148. 673 H. C. Debs, 6th series, Vol-27, Written Answers, c130W available at http://hansard.millbanksystems.com/written_answers/1982/jul/07/law-of-the-sea-uninhabited- islands#S6CV0027P0_19820707_CWA_143 (accessed on 19 December 2014). 674 The Oxford English Dictionary, Vol-VIII, (1969), 739. 675 Merriam-Webster’s Dictionary, (2004), 1078.
152
The conditions placed on insular formations for qualifying as islands are quite different from the rocks. In terms of Article 121(3), a rock has been negatively defined when it demands, ―Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.‖ The capacity of an island for generating all maritime zones and restrictive capacity of rocks for creating zones is very vital for individual coastal state as well as for the common interests of international community.
The scholars have diversity of views on the vague conditional status accorded to the rocks that can, ―sustain human habitation‖ or ―an economic life of their own‖. Some scholars taking a flexible approach consider that built up of aid to navigation, lighthouse or other similar installations on a rock provides ―an economic life of its own‖ on account of its value for shipping. Kwaitkowska and Soons do not exclude external support to fulfil the requirement of phrase ‗economic life of its own‘.676 The other group of scholars including Charney view that an island‘s capacity to sustain ―human habitation or economic life of their own‖, without external support is the key test. An island should be able to sustain on its own natural resources or as stable communities of human beings.677
It is not surprising that almost all the States which have offshore islands consider that their islands qualify for claiming all maritime jurisdictional zones. If the islands‘ regime is adopted strictly in consonance with the principles set out in Article 121, even then it appropriates a large expanse of water and jurisdictional area. Consequently, there is more coastal state creeping jurisdiction in the sea. The main difference between the mainland and island expansion towards the sea lies in the fact that in case of island, zones expand all around the island encompassing enormous sea comparing its size as illustrated in Figure-7.
676 Barbara Kwiatkowska and Alfred H.A. Soons, Entitlement to Maritime Areas of Rocks Which Cannot Sustain Human Habitation or Economic Life of Their Own, 21 Netherlands Yearbook of International Law (1990), pp 139-181 at 167-8. 677Jonathan I. Charney, 1999, ‘Rocks that cannot sustain human habitation’, 93 AJIL 863-78 (1999), 863-878.
153 Figure 7 – Hypothetical 3NM Island with its Maritime Zones
An island covers large expanse in comparison to mainland coastline of same size. The area appropriated by an island of 3NM, considering it almost round, whose circumference equals to 18.85NM of straight mainland coastline is calculated as Table-2 to show seriousness of the issue.
Table 2 – Comparison of Maritime Area for Straight Coastline with 18.85 NM Length with Corresponding Circumference Radius of 3NM Island
In case of mainland the expansion is seaward only towards the sea facing mainland. The insular features, above water at high tide, can validly create fringing criterion for the purpose of using straight baselines irrespective of their capability to sustain ―human habitation or economic life of their own‖.
Artificial Islands
An ‗island‘ has been, apart from other conditions, defined as ‗a naturally formed area of land‘. As a general rule, in strict sense, the artificial islands are intended to be excluded from definition of islands. The term ‗naturally formed‘ has been
154 considered by many experts as ambiguous and vague. What is really meant from naturally formed. History has witnessed a variety of stances on the issue of artificial islands. Hague Conference deliberated the case of artificial islands and advanced the idea that; ―The definition of the term "island" does not exclude artificial islands, provided these are true portions of the territory and not merely floating works, anchored buoys, etc.‖678 In the initial draft Article 11, ILC included artificial islands in island definition however finally it was excluded.679 Francois, the special rapporteur, expressed that Article 11 raised ‗the delicate question of artificial islands‘.680
The inclusion of dwellings, which were built on piles, in the orbit of islands could not survive criticism681. During pleading in the Behring Sea Fur Seals Arbitration, Mr. Russell, the counsel for UK contended that by building a lighthouse on a rock it becomes property of the erecting nation and acquiring of territorial rights by the owning state is undoubted.682 In the Channel Continental Shelf case, France argued against calculating Eddystone rock for delimitation as it did not remain dry at high tide and having status of low-tide elevation.683 A lighthouse had been built on Eddystone but Court did not decide about status of Eddystone being island or otherwise. Nevertheless, the court adjudicated that it was a valid base point for delimitation of continental shelf boundary in the channel.684
678 Elihu Lauterpacht ed., International Law: Being the Collected Papers of Hersch Lauterpacht, Vol-3, (London: Cambridge University Press, 1977), 181. 679 Terasaki Naomichi Hiro, The Regime of Islands in International Conventions (Part 1), Review of Island Studies, 6-7 available at http://islandstudies.oprf-info.org/research/a00010/ (accessed on 14 July 2014). 680 ILC Yearbook 1954, Vol-I, para 48 at 90. 681 Ibid., para 42 & 44 at 93. 682 Fur Seal Arbitration, Oral Argument of Sir Charles Russell on Behalf of Great Britain, Proceedings of the Tribunal of Arbitration, Vol-XIII, (Washington, Government Printing Office, 1895), 337. 683 Case concerning Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic (UK, France), Decision of 30 June 1977, para 125 at 67. 684 Case concerning Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic (UK, France), Decision of 30 June 1977, para 144 at 74.
155
The idea of construction of artificial islands is not very old. In 1933, US viewed that artificial structures constructed on the high seas do not extend the territorial sea area. Conversely, structures constructed from the land may extend the coastline as well as territorial sea.685 In 1950s, offshore Artificial Islands and Structures (hereafter AIS) appeared for usage as radio stations in the North Sea. Further development occurred during 1970s in the form of Sea-land, Atlantis or Minerva, the famous private owned states.686
Sea level rise is a particular concern of low lying states and small islands. The Inter-governmental Panel on Climate Change (IPCC) in its 2013 report has estimated global mean sea level rise from 0.53-0.98 meters by the year 2100687. Numerous scientists while agreeing on sea level rise differ with IPCC on the methodology for estimations of rise. AIS are being used for Land Preservation, Reclamation, as Human Habitats and as Sovereignty Markers. The reclaimed area hosts; Santos Dumont Airport of Brazil,688 the Male Airport of Maldives689, Changi Airport of Singapore690 and Hong Kong International Airport.691 In Singapore, the reclaimed Jurong Island, a merger of seven small islands, comprises a combined area of 3000 hectare or over 30 kms that houses a power plant and petrochemical
685 Wilson George Grafton Ed., International Law Situations, (Washington: US Government Printing Office, 1934), 57. 686 Tsaltas Grigoris, Bourtzis Tilemachos and Rodotheatos Gerasimos, ‘Artificial Islands and Structures as a Means of Safeguarding State Sovereignty against Sea Level Rise. A Law of the Sea Perspective’ (Paper presented to the 6th Advisory Board on the Law of the Seas (BLOS) Conference, Monaco 25-27 October 2010) (unpublished), 5 available at www.iho.int/mtg_docs/com_wg/ABLOS/ABLOS_Conf6/S2P3-P.pdf (accessed on 6 February 2014). 687 John A. Church et al., “Sea Level Change”, in Climate Change 2013: The Physical Science Basis, Contribution of Working Group-I to the Fifth Assessment Report of the IPCC, T.F. Stocker et al., eds., (UK: Cambridge University Press, 2013), 1180. 688 Source: http://www.airport-technology.com/projects/santosdumontairport/ (accessed on 6 February 2014). 689 Source: http://www.gulfcobla.com/projects/12-05-27/Maldives_Airport_2012.aspx (accessed on 7 March 2014). 690 Source: http://www.airport-technology.com/projects/changi/ (accessed on 7 March 2014). 691 Source: http://www.airport-technology.com/projects/cheklapkok_new/ (accessed on 8 March 2014).
156 installations.692 The constructions of such nature and scale of AIS are most likely to breed new controversies and conflicts between the neighbouring states.693 It has particular bearing in case of enclosed, semi-enclosed seas or gulfs.694
The establishment of artificial islands, structures and installations695 has been taken care in the context of exploration, exploitation and jurisdiction over EEZ resources. CSC allowed the construction of installations and other devices for exploring and exploiting natural resources.696 The term island had not been part of CSC and was included in UNCLOS. Article 60 of UNCLOS is more specific on ‗islands‘ whereby coastal state cannot only construct and exercise jurisdiction on such islands but ‗shall‘ also have exclusive rights to regulate, operate, use and more importantly to authorize such activities.697
The term ‗artificial island‘ has been used in number of other articles698 in UNCLOS, inter alia, in relation to; ―submarine cables and pipelines on the continental shelf‖,699 ―freedom to construct artificial islands and other installations permitted under international law‖700 and ―enforcement with respect to pollution from seabed activities‖.701 The legal implication of artificial islands concerning generation of maritime zones of its own is absolutely clear. They are not islands in true legal sense for this entitlement.702
It is interesting to know how artificial islands affect the drawing of straight baselines. First of all, UNCLOS does not provide any definition for artificial
692 Marsita Omar, ‘Jurong Reclamation’ available at http://eresources.nlb.gov.sg/infopedia/articles/SIP_1076_2010-05-14.html (accessed on 12 July 2014). 693 Bahman Abai Diba, Legal Regime of the Artificial Islands in the Persian Gulf, (January 9th, 2009), available at http://payvand.com/news/09/sep/1071.html (accessed on 18 January 2015). 694 UNCLOS, Article 122. 695 UNCLOS-I, Vol-III Article 56(1)(b)(i). 696 CSC, Article 5(2). 697 UNCLOS, Article 60(1)(a). 698 Ibid., Article 11; Article 60, Para 8; Article 80; Article 147 Sub-para 2(e); Article 259. 699 Ibid., Article 79. 700 Ibid., Article 87. 701 Ibid., Article 214. 702 Ibid., Article 60(8).
157 island. About the legal status of artificial islands, Soons is of the opinion that just like the natural processes of transforming the seabed area into an island; reclamation, by assisting nature, is not ―unnatural formation‖ altogether.703 Francois is of the view that the term ―naturally formed‖ covers man-made structures like lighthouses.704 If this view is accepted then it would open up new vistas of intellectual, legal and technical controversies. An argument may be that poppy seeds are a natural produce which is assisted by human being to make it heroine which is also not altogether ―unnatural product‖. Nevertheless, it is hard reality that both the produces have different legal ramifications. Dipla posits that ―‗island‘ normally means ―an elevation of the sea bed created through natural phenomena and consisting of soil or other types of earth material (sand, mud, gravel deposits, limestone mixed with coral debris etc.) but not Ice‖.705
Analytical Evaluation of Artificial Islands
The legal status of artificial islands is that artificial islands neither come in the ambit of islands nor do they generate any maritime zone of their own. Since this aspect of artificial islands had not been vibrant at the time of UNCLOS conclusion, it is perceived that much attention had not been paid on the issue during its negotiation. The drafters of UNCLOS could not visualize the pace with which the technology will progress. Had artificial islands been capable of creating their own maritime zones, a large chunk of high seas could have been appropriate able by various national jurisdictions including landlocked states?
The customary law or any explicit convention provision is not available to guide on the effect of artificial islands on straight baseline regime. Contextually this category of island cannot muster support from LTE which exists ipso facto and provides basis for further work on it to be visible. Artificial Island may not be necessarily erected on a raised seabed or rock in a submerged state. The status
703 O’Connell, LOS, Vol-I, (1982), footnote 119 at 197. 704 ILC Yearbook 1954, Vol-I, para 9-10 at 91. 705 Haritini Dipla, “Islands” in The Max Planck Encyclopedia of Public International Law, Wolfrum Rudger Ed., Vol-VI, (Oxford University Press, 2006), 406.
158 of these islands may be close to roadstead.706 UNCLOS clarifies the legal status of roadstead as; ―Roadsteads which are normally used for the loading, unloading and anchoring of ships, and which would otherwise be situated wholly or partly outside the outer limit of the territorial sea, are included in the territorial sea‖.707
Artificial Islands do not fall into the degree of low-tide elevations708 as described in Article 13 of UNCLOS. LTE has the capacity to generate territorial sea and can be validly used as base-point for drawing straight baselines provided. ―Lighthouses or similar installations which are permanently above sea level have been built on them‖. Artificial islands do not come in the purview of LTE as such. If it is accepted, as Soons has suggested that even reclamation by humans through assisting nature is not unnatural process, would open up many questions. Possibility is there for states to construct artificial islands fringing mainland to draw straight baselines in order to encroach more and more seas.
Apart from just expansion of space and jurisdiction, if artificial islands are afforded the insularity status of islands, further conflicts may arise on their usage. The most controversial area may be the military usage of such insular formations. All the states, whether coastal or landlocked, are allowed to construct artificial islands on the high seas. Does this mean that this freedom would allow the military activities for all purposes? To be more specific, do these formations be allowable for military activities like missile or nuclear testing. It is perceived that this would not be covered in the freedom of construction of such formations in view of exhortation in UNCLOS for reservation of high seas for peaceful purposes.709 Secondly no area of high seas can be, validly, appropriated by any state.710
706 Roadstead is an area near the shore where vessels are intended to anchor in a position of safety; often situated in a shallow indentation of the coast. Source: UN, Baselines: An Examination, (1989), 60-61. 707 UNCLOS, Article 12. 708 A low-tide elevation is a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide. Source: UNCLOS, Article 13 and TSC, Article 13. 709 UNCLOS, Article 88. 710 Ibid., Article 89.
159
Thinking of reaching waters under the ice was once a farce which was made reality by nuclear powered submarine.711 Similarly materializing constructions of islands on high seas in this age of rapid development is not a farce as well. Papadakis rules out any juridical status of artificial islands. While distinguishing between ‗natural‘ and ‗naturally‘ formed islands, he says that terms mean formation without human intervention. The construction with concrete or other similar materials to show up a LTE at high-tide does not qualify for islands.712
Low-Tide Elevations
Sovereignty of a state over its land territory is one of the cardinal principles of international law. In terms of international maritime law it includes; internal waters,713 territorial sea714 and the airspace above, seabed and subsoil below them. Islands are part of mainland of a state‘s territory. The idea has its root in the maxim; ―the land dominates the sea‖715 that has been acknowledged in international judgments and tribunals‘ awards. The customary international law concerning islands and low-tide elevations had been uncertain. It was provided some clarity by the ILC in its work which led to codification about these features in the TSC.
In 19th century customary international law, flexibility prevailed regarding use of offshore features as base-points for the measurement of territorial sea. The small offshore features like atolls, coral reefs and shoals had been used for generating territorial sea as part of territory. Features whether dry or not had been used as base-points in order to measure the territorial sea. To halt expansionism in the territorial sea, artificially, consensus crystalized to distinct drying rocks and shoals which are dry at low tide and those even dry at high-tide. The distinction was embodied in the TSC716. Figure-8 gives an idea of different insular features.
711 Capt(N) Webster Phil, Arctic Sovereignty, Submarine Operations and Water Space Management, Canadian Naval Review, Vol-3, Number 3 (Fall 2007), 15. 712 Nikos Papadakis, The International Legal Regime of Artificial Islands, (Netherland: A. W. Sijthoff International Publishing Company, 1977), 93. 713 UNCLOS, Article 2. 714 Ibid., Article 3. 715 Anglo-Norwegian case, 133. 716 O’Connell, LOS, Vol-I, (1982), 194.
160 Figure-8717 Various Insular Features
LTE and island are same as for as their formation is concerned.718 A question arises as to what constitutes ―land‖. UNCLOS does not address this issue. It would appear from various writings that the physical composition of the land (whether it is a mainland coast, an island, an elevation or other feature) does not affect its status, so long as it comprises ―natural‖ material. Some scholars have emphasized that LTE can be formed by ―mud flats or sand bars‖.719 US practice since 1804 has been that a submerged shoal cannot generate a maritime zone not being an ‗island‘.720
The status of LTE for using as base point depends on presence of permanent installation constructed over it. Further relaxation has been provided by placing an alternate condition of international recognition in terms of Article 7 (4). The ICJ had allowed two base-points that situated on LTE having no installation over them.721 Both the LTE are drying rocks. The main difference between UNCLOS text and the rule espoused in Anglo-Norwegian case lies in ICJ‘s permissibility on employing of straight baselines from LTE. On the other hand TSC and
717 Source: International Hydrographic Bureau, A Manual on Technical Aspects of the United Nations Convention on the Law of the Sea, 1982, Special Publication No 51, 5th Ed., (2014), 4-9. 718 UNCLOS, Articles 13 and 121(1). 719 Roach and Smith, Excessive Maritime Claims, (2012), 66. 720 Soult v. Africaine (1804) 22 Fed.Cas. page 805. 721 Anglo-Norwegian case, Dissenting opinion of Sir Arnold McNair, at 167.
161 UNCLOS do not permit employing of straight baselines from LTE unless lighthouses or other installations are built on them and are permanently above sea level.
It is evident from Article 7(4) of UNCLOS that as a general rule LTE, comparing high tide elevations, are excluded from strict interpretation of island. As an exception to the rule of generality, it can be characterized as an island for the purpose of drawing straight baselines and generating territorial sea if ―[…..] Lighthouses or similar installations which are permanently above sea level have been built on them‖722. An additional proviso is offered that even if this condition is not fulfilled it can still be treated as such, ―[…..] in instances where the drawing of baselines to and from such elevations has received general international recognition‖723.
In this modern age it is not difficult to fulfil the condition of housing lighthouses or similar installations when we compare with the time when TSC entered into force. Now a day even developing countries can easily maintain these facilities to achieve more sea area. It appears that the framers of TSC and UNCLOS could not imagine the rapid pace of technological advancement in the future. The inventions like solar energy and other developments have made the installations of lighthouses and their maintenance much easier. The second condition of receiving general international recognition is apparently very flexible and may prove crucial.
The state practice on different regimes of UNCLOS exhibits that states have resorted to flexibility on the application of these principles. The manner and pace with which the construction of artificial islands is progressing, it is likely that they may be generally recognized by the states for added advantage of increasing their sea area. The examination of logic behind providing allowance for LTE having lighthouses on them or flexibility on roadstead appears to have a
722 UNCLOS, Article 7(4). 723 Ibid.
162 single thread to encourage services for international shipping which has remained the primary objective of sea. This view is corroborated from the language of Article 11 of UNCLOS which provides leverage if permanent harbour works724 is constructed along the coast. Legally these works form an integral part of the coast and may be used for drawing baseline for measuring maritime zones.
The condition for such installation is not only to be ―above sea level at high tide‖ but should also be permanent. Prescott and Schofield recognize that exception in Article 7(4) only applies to Norway.725 Tanaka lends support to the same view.726 US, during UNCLOS-I, proposed for the substitution of ‗rocks and shoals‘ with ‗low-tide elevations‘.727 The proposal was agreed and accepted.728
A situation may arise that such built structure may submerge due to sea level rise. Question may arise what would be the legal status of such base-point drawn from high-tide elevation or LTE for the purpose of straight baseline? Whether in this situation the state would require reviewing of its base point or would continue with the same coordinates existing prior to sea level rise? Does a high- tide elevation used as base-point for straight baseline subsequently submerged would remain as valid base-point or would be reviewed? Or would the base-point once selected and getting international recognition, may continue as base-point for straight baselines?
The concept of ambulatory insular features, as a general rule, is not in vogue as in the case of unstable coastline. The baselines may change due to natural coastal regressions or progressions. In US/Alaska case, the court decided that legally it would not be permissible to use an erstwhile island as base-point which finally
724 These harbour works may have the forms of jetties, moles, quays or other port facilities, coastal terminals, wharves, breakwaters, sea walls, etc. Source: UN, Baselines: An Examination, (1989), 56. 725 Prescott and Schofield, Maritime Political Boundaries, (2005), 160. 726 Tanaka, International LOS, (2012), 51. 727UNCLOS-I, Vol-III, 243. 728 Ibid., 187.
163 disappears under the sea.729 Apart from Sand islands discussed in this case, for the islands submerged inference may be drawn from Article 7(4) of UNCLOS, where base-point for straight baseline receives international recognition. The base-point may continue in the spirit of Article 7(2) of UNCLOS for highly unstable coasts due to natural conditions or deltaic configuration until coastal state changes its straight baselines.
Analytical Evaluation of Islands and Rocks
Where common interests or clash of interests are involved it leads to controversies. Just like some other provisions of UNCLOS, islands and rocks generated discussions from individual state perspectives. The presence of islands in general and in close proximity of coast in particular has specific bearings on the limitation or delimitation of maritime boundaries.
In the period before Hague Conference, ILA in 1926, Institut De Droit International in 1928 and similarly the American Institute of International Law accepted that only island, as a rule, could have its own territorial sea.730 By the time of Hague Conference, it had been concluded as an opinion that every permanently dry insular feature could generate territorial sea on single formula beyond discrimination of geographical configuration.731 The vagueness and absence of any objective definition of the terms ‗island‘ and ‗rock‘ often emerges into conflict between the states. The issue is compounded when the same islands or rocks are claimed by different states. The states may dispute on the acceptance of an entity as an island or otherwise on account of their location and qualitative or quantitative eligibility.
Article 121 provides a broad definition of an island which is unclear in itself. The four requisites with the exception of ‗an area of land‘ which is debatable may be possessed by a rock as well. The criterion for a ‗rock‘ to come into the fold of
729 United States v. Alaska, 117 S.Ct. 1888 (1997), U.S. Supreme Court, June 19, 1997. 730 O’Connell, LOS, Vol-I, (1982), 192. 731 Ibid.
164 island as prescribed in Article 121(3) does not kindle any clarity too. The phrase ―human habitation or economic life of their own‖, for a rock to become island is not lucid and has been subjected to criticism by the scholars and publicists.
A flexible view considers that human habitation and economic life based on external support entitles a rock to attain the status of island. The contrary view validates only the self or internal sustainability or economic life based on natural resources and an organized society. The later point of view may muster some support from contextual interpretation of the phrase as in the case of LTE. LTE changes its status if lighthouses or similar structures are erected on it. It is true that it changes its character but does not change its nature.
In view of aforesaid discussion it can be called that a rock cannot fit in the shoes of island just through external support like shipping or other such enterprises. The standard demanded in the clause is purposeful. The drafters of provision were aware that every rock would not qualify the test of human habitability or independent economic life. Nevertheless the conditions, by some writers, of organized society with some culture may not be feasible. No standard is available on the basis of size of the island or the so-called islet.
There is no conclusive evidence for interpretation of the phrases; naturally formed, human habitation or economic life. Neither state practice732 nor opinion of publicists is there to act as guidepost for uniform understanding of these phrases. The difference between ‗islands‘ and ‗rocks‘ is clear for the purpose of generation of various maritime zones and boundary delimitations.
It can be said that for the purpose of drawing straight baselines, there is no difference between fringes of islands whether comprising rocks or islands either small or big. All kinds of insular features that remain above water at high tide can validly fringe the coast. Article 121(3) was added in the UNCLOS text in 1974 and continued in subsequent drafts. This provision did not hail from the TSC and
732 Churchill and Lowe, LOS, (1999), 49-50.
165 was added during negotiation at UNCLOS-III. Had sub-article 3 of UNCLOS intended differently it could have categorically negated the inclusion of rocks from constituting fringes for the regime of straight baselines? As back as in 1812 Chitty opined; ―Whether islands are ‗composed of earth or solid rock will not vary the right of dominion‘ for the right of dominion does not depend upon the texture of the soil.‖733
Conclusion
The jurisprudence of islands enunciated in Article 121 of UNCLOS is not clear to elaborate about the prerequisites of islands and rocks. The constituent elements of islands like, ‗naturally formed area of land‘, surrounded by water and above water at high tide are unclear qualitatively and quantitatively. Notwithstanding the distinction between islands and rocks, both have the capacity to act as base-points and fringing the coasts to fulfil the requisites of straight baselines. At the same time AIS may not be treated at par with the LTE which accommodates lighthouses or otherwise achieves general recognition of international community. The conditions of possessing economic life or sustaining human habitation for a rock to come into the fold of island for generation of all maritime zones is arguably vague and ambiguous.
One aspect, nevertheless, is clear that islands, rocks, conditionally low-tide elevations, except AIS, are valid base-point for delineation of straight baselines. AIS are not "a naturally formed area of land‖ to acquire the status either of island or rock734.
733 O’Connell, LOS, Vol-I, (1982), 186. 734 UNCLOS, Articles 11, 60, 80; 147(2)(e) and 259.
166 CHAPTER 8
FRINGE OF ISLANDS AND IMMEDIATE VICINITY
The disputes on islands may fall broadly into three categories; over sovereignty, over their capacity to generate area of sea for jurisdictional claims and drawing of straight baselines. Islands, in most of the cases, are vital components in the baseline construction. Dealing with the islands concerning straight baselines and maritime delimitations is one of the most problematic issues at international law of the sea. The islands are root cause for numerous maritime disputes in the world. The second permissive condition for entitlement of employing straight baselines outlined in Article 7(1) of UNCLOS relates to the presence of islands fringing the coasts. The condition is not specific either in qualitative or quantitative terms. UNCLOS comprises only one article on islands without any definitive explanation to solidify this criterion.
The inherent uncertainties in Article 7 provide enough latitude for flexible interpretation rather even ignoring the parameters by the states in their practice. The situation emerges into proliferation of expansive maritime claims. At the same time these claims are objected by the other states on various grounds like fringing islands are far offshore, not in immediate vicinity of coast, widely dispersed, not in general direction of coast etc. The issues concerning islands fringing the coasts are discussed to bring clarity.
Fringe of Islands
The phrase ―fringe of islands‖ got into international law of the sea consequent to consideration of peculiar geographical situation of the Norwegian coastline in the fisheries case. It was not only reasonable but a geographical compulsion for Norway to utilize straight baseline system for the limitation of maritime boundaries. In Norwegian coast; ―The number of insular formations, large and small, which make up the ―Skjærgaard‖, is estimated by the Norwegian government to be one hundred and twenty thousand‖.735 Norway‘s skjaegaard
735 Anglo-Norwegian case, 127.
167 represented a model of ‗a fringe of islands along the coast in its immediate vicinity‘.736 The court by majority decided that Norwegian reliance on the drawing of straight baselines around the skjærgaard ‗were not contrary to international law‘.737‘
These were such complexities that necessitated enclosing the outer most islands of Norwegian coast by drawing straight baselines. The second permissive criterion, provided in Article 7, for employing straight baselines is the presence of ―Fringe of Islands‖ in the coast‘s immediate vicinity. As usual UNCLOS Article 7 does not provide any mathematical or objective framework for the guidance and application of this criterion which is complementary in nature. It means that if a state is interested in straight baseline system either her coastline should have deep indentation or otherwise her coastline should be fringed with islands. Whether the islands are part of mainland or whether the coast is to be considered only terra firma738 is unclear? How far the fringe should situate from the coast to constitute ‗immediate vicinity‘ remains an enigma?
If islands are treated part of coast, it may lead to further complications like; how far the island should situate to be included in the definition of coastline? It would multiply the complexities further as to which islands are to be parts of the coastline and which are not. Substantively this provision is available but objectively it is unclear as to what are the fringing conditions in which criterion may be applied. Still it is vague as to how many islands should be there to constitute fringe? How much coast must be masked for this system of baselines?
US position is that for a ―fringing island‖, masking of 50% of the coastline is must in a particular location, island must lie within 48NM of the coast and distance of each island from the other island must not exceed 24NM.739
Interestingly like shared bay, indentation, estuary and shared river, a fringe of
736 Prescott and Schofield, Maritime Political Boundaries, (2005), 146. 737 Anglo-Norwegian case, 143. 738 Firm or solid earth; dry land (as opposed to water or air). Source: http://dictionary.reference.com/browse/terra+firma (accessed on 14 March 2014). 739 LIS (1987), No. 106, 16.
168 islands may be shared by two or more states. UNCLOS does not furnish rules for drawing of straight baselines though it may not pose serious problems like other aforementioned entities. Kapoor and Adam perceive that the fringe of islands demands impliedly for the presence of a number of islands, islets, rocks etc. To form a fringe along the coast, the islands should be spread over a distance. A few isolated islands present along the coast would not constitute a sufficiently solid fringe in this context.740 The issue is put to the test under various interpretive principles.
Ordinary Meanings
The ordinary meanings of word ‗fringe‘ are; ―something resembling a fringe; an open broken boarder; an outer edge; as, a fringe of trees around a field; a fringe of curly hair‖.741 According to Merriam Webster fringe means ―something resembling a fringe: Edge, Periphery‖.742 The textual interpretation of the phrase ‗fringe of islands along the coast‘ itself suggests that it is something away from the mainland or coastline. This seems the intention of the drafters of UNCLOS. If the intention was otherwise, the text could have been drafted ―a coastline having fringe of islands‘‘ or more appropriately, ―a coastline comprising fringe of islands‖.
The term ―fringe‖ in reference to islands does not find legal meanings or any established geographical interpretation. No precision is available to exhibit ‗fringe of islands‘. The UN study proposes two geographical scenarios for fringe of islands with examples. Firstly, the islands form unity with the mainland as in the case of Norwegian coast,743 secondly, islands ―form a screen which masks a large proportion of the coast from the sea‖ like Croatia‘s (former Yugoslavia‘s)
740 Kapoor & Kerr, A Guide to Maritime Boundary Delimitation, (1986), 34. Also in Proshanto K. Mukherjee, Final Report on Impact of the MONALISA Project on the International Legal Framework for Navigation at Sea, 17, available at http://www.sjofartsverket.se/en/MonaLisa/Archive/ (accessed on 6 June 2015). Hereinafter “Mukherjee, MONALISA Project”. 741 Webster’s Dictionary, (1977), 734. 742 Merriam-Webster’s Dictionary, (2004), 502. 743 UN, Baselines: An Examination, (1989), section 44 at 21.
169 coastline.744 The fringe of islands, although not exactly in the words of court judgment in the fisheries case, evolved into this concept via TSC into UNCLOS with elaboration. The ICJ commenting on the fringed coast pronounced; ―[.....]or where it is bordered by an archipelago such as the ‗Skjærgaard‘‖745 is the basis for this phrase.
The Norwegian coast which is unique in its features cannot be equalized with other states for the application of this principle. Only an inference can be drawn for its use by the other states having insular features in the vicinity of their coast. If Norwegian coastal condition is applied for qualification of fringe of islands situation, there would hardly be any state to pass this test. The UN study suggests that for a fringe of islands there should be more than one island to form a fringe. However, the difficulty has been admitted in determining the minimum number of islands required for the fringe conditionality.746
The UN study expresses that there is absence of any uniform objective test to identify fringing nature of each and every islands constituting immediate vicinity. The general spirit of Article 7 should be the guiding principle for the States.747 The plurality of islands is clear from the phrase ‗fringe of islands‘, otherwise the wording could be ‗fringe of island‘. The second situation relates to the coasts which are masked with islands in the form of a screen. This condition is not analogous to the Norwegian coast but this test may provide guidance for coasts where islands are situated at some distance.
The minimum requirement for masking the coast is also not explicit for guidance. The UN work suggests the masking of the coast‘s large proportion from the sea748 without providing any precise account for the masking of mainland. Still the criterion is ambiguous as to what does the large mean? If masking meant that more than 50% of the coast, the phrase used could have been ‗maximum portion
744 UN, Baselines: An Examination, (1989), section 45 at 21. 745 Anglo-Norwegian case, 129. 746 UN, Baselines: An Examination, (1989), section 43 at 21. 747 Ibid., section 42 at 21 748 Ibid., section 45 at 21.
170 of the coast must be masked‘. It has been observed that most of the interpretations have not contributed to clarify the phrase ‗fringe of islands‘ for a candid utilization and customizing the issue. No mathematical interpretation can be made out from the phrase to know that how far the fringing island should lie from the mainland? How far the individual fringing island should be from each other for unity of islands?
The fringing islands issue becomes more important in the light of ICJ decision in the Qatar/Bahrain case which declared article 121(2) as reflection of customary law. The judgment quoted earlier cases and reemphasized that in consonance with UNCLOS Article 121(2), the islands irrespective of their size generate maritime rights same as other land territory.749 It would not be inappropriate to say that ambiguity generates further ambiguities. It is considered true in the case of lack of clarity in the interpretation of terms and phrases used in Article 7 for an objective outcome.
Object and Purpose
The object and purpose of phrase ‗fringe of islands along the coast‘ seems vivid that islands are different from the coastline. If objective was that islands are to be part of coastline, how could they be in the immediate vicinity? The contextual interpretation may clarify that the object of Article 7 is not to push the territorial limits of coastal states farther seaward. If islands are considered part and parcel of mainland it would serve the interest of most of the states to enlarge their internal waters and so the territorial sea and other maritime zones. If islands are not treated part of coastline, it would be a great barrier in the way of excessive maritime claims. Contextually, the term ―fringing‖ is used by the geographers in connection with reefs750 that are in continuity around the islands. The enduring theme running through whole Article 7 is easing out the coastal states in drawing their baselines in unsmooth coastal configurations. Most of the phrases and
749 Qatar/Bahrain Case, Merits, Judgment, ICJ Reports 2001, p. 40, para 185. 750 A reef is a feature that is specified in Article 6, which permits an island having a fringing reef to use as its baseline.
171 terms used in Article 7 have their origin in Anglo-Norwegian case. Neither the purpose of the ICJ decision nor the drafting of UNCLOS was to provide opportunity to the coastal states for expansion seaward unduly under the garb of this allowance for employing straight baselines.
Contextually the legal definition of island has been given in UNCLOS Article 121(1) but it cannot furnish precise criteria for the purpose of fulfilling fringing conditions. The delineation of straight baselines is permissible under certain conditions like presence of; deep indentation along with cut into or islands fringing the coast, but option is to be exercised restrictively.751 The object is smoothing the coasts and removing complexities for the benefit of both the coastal and other states. The elimination of uneasy patterns seaward of straight baselines is cornerstone of the object. The court agreed that the geographical condition of Qatar and Bahrain was very difficult to identify the straight baselines. The parties as well as the court did not, therefore, identify the baselines.752 The problematic issue remains that even in dispute between the state parties; the courts‘ decisions on criteria of drawing straight baselines had either been subjective or just repetition of the principles enshrined in the Anglo- Norwegian case or text of Article 7. At occasion the court verdicts are mere restatement of previous decisions.
The straight baselines issues are purely technical in nature, which ultimately require settlement by the technical experts. Judge Oda suggests that court should confine itself in describing the method of measuring boundary line as specifying baselines was beyond the competence of the court. The court could have ordered for appointment of experts in geography and hydrography as a panel for determination of mathematical or geometric means.753
The examination of Article 7 presents a picture that the spirit behind the straight
751 Qatar/Bahrain Case, Merits, Judgment, ICJ Reports 2001, p. 40, at 103, para 212. 752 Ibid., Separate Opinion of Judge Oda, Merits, Judgment, ICJ Reports 2001, p. 40, para 28 at 135. 753 Ibid., para 28 at 136.
172 baseline system regarding coasts that are indented or fringed with islands may be preserved if such system of lines is adopted when normal baseline system would emerge into a complex pattern of maritime zones. Much before UNCLOS and even before Norwegian fisheries case, Hyde viewed;
―Where, however, a group of islands forms a fringe or cluster around the ocean front of a maritime State it may be doubted whether there is evidence of any rule of international law that obliges such State invariably to limit or measure its claims to the waters around them by the exact distance which separates the several units.‖754
Travaux Preparatoires
The limit of territorial sea and drawing of straight baselines in certain unusual geographical conditions were amongst the major controversies during UNCLOS-I. Straight baseline issue was particularly contentious due to its inherent capacity, in most of the cases, to decrease the high seas. The early draft755 of TSC concerning straight baselines did not have the mention of word ‗fringe‘ rather ‗islands‘ in the coast‘s ‗immediate vicinity‘. The misuse of this provision for a single isolated island against the spirit of a group of islands was discussed in detail in the preparatory committee.756
In his second report Francois, Special Rapporteur, proposed amendment reading ―With regard to a group of islands (archipelago) and islands situated along the coast the ten-mile line shall be adopted as to baselines‖.757 In his third report, François, maintained;
―The term ‗groups of islands‘, in the juridical sense, shall be determined to mean three or more islands enclosing a portion of the sea when joined by straight lines not exceeding five miles in length, except that one such line may extend to a maximum of ten miles‖758
754 Charles Cheney Hyde, International Law, Vol-I, (Boston: Little, Brown and Company, 1947), 485. 755 UN Conference on the Law of the Sea, Official Records, Vol -I: Preparatory Documents, (Geneva: 24 February – 27 April 1958), para 104 at 23. Hereinafter “UNCLOS-I, Vol-I”. 756 UNCLOS-I, Vol-I, 102. 757 Ibid., 293. 758 Ibid.
173 Francois had proposed that for the islands to be fringing, the word ‗numerous‘ could be inserted. US government supported this proposal by saying that a few islands in front of coast could not justify employment of straight baselines759.
The ILC, despite the receipt of different proposals, refrained from fixing specific criteria on the group of islands.760 UNCLOS-II failed to decide the thorny issue of territorial sea limit. UNCLOS-III widened the scope due to multi-dimensional aspects, the foremost being the seabed area. O‘Connell contended that the beginning of UNCLOS-III was in unstructured fashion. The text of UNCLOS was not to be debated and voted upon unlike Hague and Geneva Conferences.761 The official record of negotiations of UNCLOS-III is likewise not available to throw ample light on its proceedings. The rules of procedure formulated by the President of UNCLOS-III and approved by the General Assembly read as; ―The conference should make every effort to reach agreement on substantive matters by way of consensus and there should be no voting on such matters until all efforts at consensus have been exhausted.‖762
Moreover, the rules of procedures required taking of decision on important questions by two-third majority. The intentions of the negotiators and drafters are very clear that they did not want to take any risk which could jeopardize the efforts of international community as had happened in the case of UNCLOS-II. If detailed procedures had been adopted in UNCLOS-III, the idea of giving life to this convention could have remained a dream. At the same time, this new procedure led to many ambiguities and vagueness. States have been taking undue advantage of this weakness. The rules of procedure emphasized on ‗all efforts‘ without providing any mechanism for the affectivity of ‗all efforts‘ and at what stage the efforts were to be exhausted. The second committee adopted the ‗rule of
759 ILC Yearbook 1955, Vol-I, Para 20 at 196. 760 UNCLOS-I, Vol-I, 293. 761 O’Connell, LOS, Vol-I, (1982), 26. 762 Third United Nations Conference on the Law of the Sea, Summary Records of 13th Plenary Meeting, Document: A/CONF.62/ SR.13, para 15 at 31.
174 silence‘ which bade the delegations not to speak if they were essentially in agreement with the single text.763
States Practice
It is neither the purpose nor possible to discuss the practice of individual states regarding drawing of straight baseline in fringe of islands conditions of the coasts. In most of the cases the states employed straight baselines using this principle without offering any legal grounds. Sometimes the justifications have not been made public even upon criticism or objection from other states or scholars. The state practice has remained quite divergent from the textual set up in the UNCLOS particularly in the case of Article 7 of UNCLOS.
Historically states had never been flexible and tolerant about the dominion or sovereignty of islands. In 19th century the law officers of the Crown and Queen‘s advocate had been frequently consulted about the status of other states‘ insular features.764 The questions were asked regarding capacity of islands to generate territorial sea, composite territorial sea for ‗fringe of islands‘. Similarly questions about the legal position of waters between such offshore features and mainland had been posed to the law officers of the crown.765 The 1882 North Sea Fisheries Convention766 and 1901 Anglo-Danish Fisheries Convention encouraged territorial sea for all banks and islands. The law officers of Crown attributed Goodwin Sands in the same category.767 It reflects the concern and possessiveness of states about the insular features well before the culmination of UNCLOS.
Unfortunately one does not find any customary international law or opino juris
763 Third United Nations Conference on the Law of the Sea, Summary Records of 13th Plenary Meeting, Document: A/CONF.62/ SR.13, para 30 at 31. 764 O’Connell, LOS, Vol-I, (1982), 187. 765 Ibid., 188. 766 Article II of International Convention for Regulating the Police of the North Sea Fisheries Outside Territorial Waters, 1882 text available at http://iea.uoregon.edu/pages/view_treaty.php?t=1882-PoliceNorthSeasFishery.EN.txt (accessed on 20 July 2014). 767 O’Connell, LOS, Vol-I, (1982), 191.
175 based on state practice concerning the regime of fringe of islands. The courts sometimes had entirely a different view point from the textual interpretation as well as from the intentions or practice of states. In the Anglo-French arbitration,768 Gulf of Maine769 and Tunisia/Libya770 cases, the courts introduced novelty by providing ‗half effect‘ formula to the offshore islands. The first mention of ‗half effect‘ is found in 1977 Anglo-French arbitration. There are examples in state practice for giving partial effect to islands near the coast. Surprisingly, the verdict of the court denied ‗full effect‘ to the Scilly Isles of Britain and attributed half effect whereas accorded ‗full effect‘ to Ushant Island of France.771 Chart-4 shows the ‗half effect‘ in case of Scilly Isles.
Chart-4772
768 Case concerning Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic (UK, France), Decision of 30 June 1977, para 251 at 117. 769 Gulf of Maine Area Case, Judgment, ICJ Reports 1984, p. 246, para 222 at 336-337. 770 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, ICJ Reports 1982, p.18, para 129 at 89. 771 Case concerning Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic (UK, France), Decision of 30 June 1977, para 251 at 117. Also Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, ICJ Reports 1982, p. 18 para 115 at 89. 772 Chris Carleton and Clive Schofield, Developments in the Technical Determination of Maritime Space: Delimitation, Dispute Resolution, Geographical Information Systems and the Role of the Technical Experts, Maritime Briefing, Vol-3, No 4, (IBRU: 2002), 17.
176 The ‗half effect‘ formula could not achieve wide state practice primarily because the formula is technical in nature. Contrary to this principle of giving half effect to offshore islands, the ICJ in Eritrea/Yemen Case enunciated that ‗Dahlak‘ being; ―a typical example of a group of islands that forms an integral part of the general coastal configuration. It seems in practice always to have been treated as such‖.773 Dahlak islands situate over 24NM from the mainland of Eritrea. This seems to accept the practice of this state as a factor in this case. Interestingly the states in their practice have made use of straight baselines without legal considerations and at times not fulfilling the legal requirement of using charts of proper scale showing the coordinates of the baselines.774
The case made law based on judicial decisions could not influence the state practice and remained a subsidiary mean775 to determine the rules of law in the spirit of statue of ICJ. The state practice portrays that instead of following the rules as close to the text or object of the Article 7, they have rather adopted their own methodology. They have tried to interpret the rules according to suitability to their own coastal conditions and interests.
Analytical Evaluation of Fringe of Islands
From the foregoing discussion and various modes of interpretation, it is clear that if fringe of islands situation exists, the state becomes entitled to establish straight baseline system from such fringing islands. No Certainty on objective test for fringe of islands situation is available as a readymade solution. Tanaka has asserted this problem saying that; ―It is also difficult to objectively identify the existence of a ‗fringe of islands‘. Whilst there must be more than one island in the fringe, the LOSC does not provide any further precision regarding the minimum number of islands.‖776
US study suggests that for islands to fulfil the condition of fringing islands along
773 Eritrea/Yemen Arbitration of 17 December 1999, p 1007, para 139. 774 Qatar/Bahrain Case, Merits, Judgment, ICJ Reports 2001, p. 40, at 94, para 177. 775 ICJ Statute, Article 38(1)(d). 776 Tanaka, International LOS, (2012), 49.
177 the coast should not be away from one another more than 24NM in the spirit of Article 7. The study also places the conditions of 50% masking of the fringing islands to the opposite mainland coastline and should not situate beyond 48NM offshore.777 The requirement of permanent drying insular features had not been insisted till 1933 Finish-Sweden Liquor Treaty. According to this treaty, islands, reefs and islets were to be used for measuring the territorial sea. This version was practically incorporated in Swedish legislation through Royal order in 1924.778
The conditionality of fringing islands is not only a quantitative concern but a qualitative relevance too. Hypothetically speaking it is possible that there may be a fringe comprising only two islands masking more than 50% coast. Contrarily there may be a fringe of islands comprising a number of small islands or islets covering only 20% of coast. The percentage criterion proposed by the US may be called a bit stringent; however, some criterion would be needed to cater the qualitative test as well.
A number of publicists have been criticizing on vague nature of terms used in UNCLOS in general and in Article 7 in particular. It is undeniable that ambiguities do exist which are heavy on any precise scale. The same expressions had been used in TSC but could not be clarified in the UNCLOS. It is understood that clarities in UNCLOS had been sacrificed to facilitate culmination of the convention to avoid its frustration. François who participated, as an Expert to the Secretariat, in 1958 TSC viewed the ILC work on straight baselines in following words;
―The Commission was criticized for not having drafted some of the articles as precisely as might be desired. [.....] Any attempt to codify international law without using such expressions will prove vain. [.....] In contentious cases, the meaning will have to be decided by an impartial authority, to which disputes regarding the interpretation of these expressions in specific cases are to be submitted.‖779
777 LIS (1987), No. 106, 16. 778 O’Connell, LOS, Vol-I, (1982), 191. 779 United Nations Conference on the Law of the Sea, Volume III: First Committee (Territorial Sea and Contiguous Zone), Summary Record of Meeting and Annexes (Geneva 24 February – 27 April 1958), Document: A/CONF.13/39, para 15 at 69. (Hereafter UNCLOS-I, Vol-III, (1958)”)
178 The Norwegian coast was ‗deeply indented and cut into‘ and fringed with islands along the coast fulfilling the condition of immediate vicinity.780 Article 7(1) however sets flexible standards by allowing straight baselines if any one of the conditions in the article is achieved. Fjords in the Norwegian coast signified deeply indented coast whereas skjaergaard as ‗a fringe of islands‘ in the coasts‘ immediate vicinity‘.781 Hyde posited as early as in 1947 that there was no obligation under international law on the exact limits of lines from several islands.782
It is controversial as well that the straight baseline should be drawn from the inner (landward of the island or fringe of islands) or from the outer (from seaward side of the islands). Initially the US suggested 48NM limit of fringe of islands from the mainland to be covered into this regime.783 Later US restricted that the straight line could be employed from landward side of the island not exceeding 24NM. In case of Norway‘s straight baselines of 1935, the outer limit of island, ―Moskenesoya‖, is 44NM from mainland nearest point, whereas distance of mainland from landward edge of fringing island is 40NM.784 The UN study emphasizes that in case of fringing islands their landward edge to the mainland is to be considered as the fringe may itself have considerable width.785 Lofoten islands of Norway housing base-points 41 - 45 of 1935 decree situate at 48NM in the southwest group of baseline from the mainland.786
US study in itself seems not confident on the distance of fringed islands from the coast referring various distances suggested as; 25, 40 or 65NM,787 whereas Beazley favours 45NM.788 Contextually Article 47 of UNCLOS prescribes maximum length
780 Prescott and Schofield, Maritime Political Boundaries, (2005), 146. 781 Ibid. 782 Charles Cheney Hyde, International Law, Vol-I, 2nd Rev. Ed., (Boston: Little, Brown & Company, 1947), 85. 783 LIS (1987), No. 106, 23. 784 Prescott and Schofield, Maritime Political Boundaries, (2005), 147. 785 UN, Baselines: An Examination, (1989), para 46 at 22. 786 Prescott and Schofield, Maritime Political Boundaries, (2005), 147. 787 LIS (1987), No. 106, 20. 788Ibid., 14.
179 criteria of 125 NM789 for individual segment for employing archipelagic lines. The compliance of this criterion is visible in archipelagic state practice. It is considered not an easy solution to apply this criterion, as it is, on straight baselines in terms of Article 7. Nonetheless this test may be used for negotiation at international level for agreeing on similar formula of the length of straight baselines to avoid flagrant violations of conditions enshrined in Article 7. Instead of sticking to very hard stance it is better to have some compromise between de lege lata790 and de lege ferenda791 under a convention culminated through a lot of compromises. Showing some flexibility at the cost of some expansionism in the sea is considered better than a blended mass of appropriation of the sea through excessive claims and gross uncertainties.
Contextually a bay regime has been suggested by various studies and writers for meeting the condition of ‗deeply intended and cut into‘. In the case of fringing islands situation, it appears prudent and logical that archipelagic lines may be adopted to contextualize the baselines from fringe of islands. Two criteria of archipelagic lines may be adopted for fringe of islands. Firstly, 125NM single segment at maximum has been allowed for archipelagic lines. Half of this length may be allowed for straight baselines from fringe of islands which comes to 62.5NM or in round figure 60NM or 65NM. A single segment of such length of lines may be allowed to the states in case their baselines form fringing islands. It is based on the logic that archipelagic waters are not internal waters giving no sovereignty to archipelagic state. Even the sea area enclosed within archipelagic lines is not a territorial sea. Unlike territorial sea, in the archipelagic waters foreign vessels enjoy the right of transit passage with the right of over flight and traversing of submarine submerged. Secondly, the coastal state having fringe of islands may be permitted to draw baselines from the outer edge of fringing islands on the premise of archipelagic lines for an amicable uniform criteria.
789 UNCLOS, Article 47(2). 790 Latin Term meaning; ‘what law is’. Source: http://people.virginia.edu/~rjb3v/latin.html (accessed on 28 August 2014). 791 Latin Term meaning; ‘what law ought to be’. Source: Ibid.
180
Immediate Vicinity
Article 7 of UNCLOS is the essence of almost all the regimes of the sea on which the jurisdictions rest. The common dilemma of this article is vagueness and lack of quantitative and qualitative clarity in the terminologies used. The phrase, ―immediate vicinity‖ is a continuation of the same vagueness. After primary diagnosis of whether there are islands along the coast and that too forming a fringe, the next very crucial step is their admissibility as fringe in the eye of international law. Article 7 is silent on providing definition of immediate vicinity or any arithmetical standard for distance of fringing islands for immediate vicinity. The ambiguity subsists leading to conflicts between the littoral states for the last many decades. The distance of fringing islands from mainland is the decisive factor whether such islands can be considered to be in the ‗immediate vicinity‘ for the purposes of this provision or otherwise.
Ordinary Meanings
‗Immediate vicinity‘ is a combination of an adjective and a noun. In ordinary parlance the term ‗immediate‘ means; ―Nearest in time, space or relationship.‖792 Webster‘s dictionary connotes ‗immediate as; ―having nothing coming between; with no intermediary‖.793 Legally it means; ―not separated by other persons or things, or having direct impact; without intervening agency‖.794
Vicinity is derived from French word vicinage which means; ―Proximity‖.795 Vicinity is; ―the area near or surrounding a particular place or person.‖796 It is also defined as; ―the quality or state of being near; nearness; proximity; propinquity‖.797
The combined effect of both the words brings to one conclusion that distance may
792 Soanes and Stevenson, Concise Oxford Dictionary, (2004), 712 793 Webster’s Dictionary, (1977), 909 794 Garner, Black’s Law Dictionary, (1999), 751. 795 Ibid., 1561. 796 Soanes and Stevenson, Concise Oxford Dictionary, (2004), 1610. 797 Webster’s Dictionary, (1977), 2036.
181 not be very far. For immediate vicinity, the islands have to be very close and outwardly looking like part of mainland. When jointly interpreted in their ordinary meanings ‗immediate vicinity‘ means very close which may sometimes look like a part of anything. Westerman opines that for immediate vicinity the island should be within 12NM. Justification of this interpretation supports the word ‗vicinity‘ etymologically and qualification ―immediate‖.798
Object and Purpose
On the pattern of Article 7 in general, the object and purpose of phrase ―immediate vicinity‖ is reasonability in choosing straight baselines from fringing islands. Nevertheless, like other terms used in the article, no objective criterion is available for the guidance. No distance could be prescribed during the codification efforts including UNCLOS. General spirit of Article 7 is to be relied upon for the term immediate vicinity. In the words of Tanaka; ―The concept of the coast‘s ‗immediate vicinity‘ may depend on subjective appreciation.‖799
Some guidance may be sought from Anglo-Norwegian case in which the court while allowing straight baselines emphasized on reasonableness in drawing of straight baselines declaring; ―A State must be allowed the latitude necessary in order to adapt its delimitation to practical needs and local requirements‖.800 The basic object of the article stands true for criterion immediate vicinity too. The object is to eliminate the confusions and controversies on account of complex patterns of maritime zones seaward. The purpose may only be achieved through uniformity in the application of principles to determine some limit.
Kopela commenting on fringe of islands criterion contends that in the light of vagueness of the conditions laid down in Article 7, the expansionary effect in the state practice was not unanticipated. She suggested that expanding tendencies, due to ambiguity, need to be considered and assessed in the light of straight baselines purpose.801
798 Westerman, “Straight Baselines”, (1988), 261. 799 Tanaka, International LOS, (2012), 49. 800 Anglo-Norwegian case, 133. 801 Sophia Kopela, Dependent Archipelagos in the Law of the Sea, (Netherland: Koninklijke Brill: 2013), 74.
182
Travaux Preparatoires
Due to availability of minimal official record of UNCLOS-III, some reliance is needed to be placed on the preparatory work of ILC, UNCLOS-I and UNCLOS-II. Questions were raised about using term ―immediate vicinity‖ during the debates at UNCLOS-I. Mr. Ago, the Italian delegate while talking about phrase ‗immediate vicinity‘ said, ―The purpose of the four-power proposal was to define that phrase‖.802 Mr. Bocobo, the delegate from Philippines, considered that; ―the definition of the phrase ‗immediate vicinity‘ should be left to the courts to decide‖.803 Japan proposed the insertion of Article 14 A in the draft TSC as; ―Any disputes that may arise between States concerning the interpretation or application of Articles 5 and 7 shall be submitted to the International Court of Justice at the request of any of the parties, unless they agree on another method of peaceful settlement.‖804
The Chilean delegation proposed the deletion of word ‗immediate‘ in the ILC draft.805 The delegation remarked that the notion ‗immediate vicinity‘ had been at variance with the principles of Article 5.806 The issue is not simple to be resolved because almost every coastal state occupying fringing islands situation is peculiar in itself. It is considered that issue remained as debatable during the negotiations of earlier conferences as it is today.
States Practice
There is no determined and precise limitation for the phrase ‗immediate vicinity‘ in UNCLOS on straight baselines. The flexibility in interpretation and application of immediate vicinity criterion has been followed by most of the states. Similarly the objections have been recorded by some of the states particularly US through strict interpretation.
802 UNCLOS-I, Vol-III, (1958), para 63 at 159. 803 Ibid., para 66 at 160. 804 Ibid., 246. 805 Ibid., para 38 at 158. 806 Ibid., para 39 at 158.
183
The practice of state is evident that as usual states have made use of flexible approach in applying the fringing islands condition making best use of imprecise principles. The UN study points out about the absence of any uniform objective test applicable to every single fringing island situation in the coasts‘ immediate vicinity. The study advises the states to seek guidance from the general spirit behind Article 7.807
The practice of states regarding delineation of straight baselines from coasts fringed with islands is quite divergent. In most of cases the state practice is officially unknown due to non-communication of data to the UN to publish it for international community. O‘Connell, much before the entry into force of UNCLOS, had commented that from the practice of states it was evident that restricting states to straight baselines techniques corresponding to the coastlines as complicated as Norway had failed.808
Schofield thinks that the state practice for expansive claims may have symbolic character but their potential significance cannot be dismissed. The reluctance of coastal states from pulling back or revising the expansive maritime claims is likely to appear as a prominent feature of the future maritime practice.809 US reiterate that for qualification as fringe of islands coast, the insular feature should come in the definition of islands in the spirit of Article 121(1) of the UNCLOS.810 US stance neither musters support from the substantive provision of UNCLOS nor from the state practice including considerations in the Anglo-Norwegian Fisheries Judgment.
Analytical Evaluation of Immediate Vicinity
Just like criteria for other parameters of straight baselines, immediate vicinity test is devoid of any objective solution. How far the insular offshore features may be from the coast and still remaining in the bounds of fringe of islands? Clarity on coast‘s
807 UN, Baselines: An Examination, (1989), para 42 at 21. 808 O’Connell, LOS, Vol-I, (1982), 214. 809 Schofield, Departures from Coast (2012) at 728 810 Roach and Smith, Excessive Maritime Claims, (2012), 62
184 ―immediate vicinity‖ is neither provided in TSC and UNCLOS nor does state practice carry any uniformity for a mathematical precision to give guidance for its implementation. Reisman and Westerman suggest 12NM limit from the coast for the islands to come into the parameter of fringing islands in immediate vicinity.811 Roach suggests setting out 24NM limit as a general rule.812 It is perceived that 12NM limit has been prescribed, in view of territorial sea limit provided in the UNCLOS. It does not seem reasonable either from state practice point of view or from the angle of Norwegian case considerations. This limit otherwise loses its utility once the US study suggests a maximum limit of 48NM.
The problem of subjective text is further complicated by the variety of situations present on fringed coasts of the states. Fixing of a particular distance for the islands to come in the regime of immediate vicinity is not an easy answer. Not only the states have various interpretations suiting to their geographical conditions but also publicists have a variety of suggestions for finding parameters for immediate vicinity. Prescott has amply highlighted this aspect when he says; ―Unfortunately, it would not be possible to predict with confidence what the majority thought of a fringe of islands, 25, 40 or 65 nautical miles from the coast‖.813
The term ‗immediate vicinity‘ is undoubtedly a relative term. Possibilities of evolving a single yard stick while taking into account the time and space may not lead to any workable solution. Immediate vicinity may be different in case of land, objects on sky or in the sea. Some flexible view if not taken in the cases of fringing islands, emerging of any uniformity of principles seems quite difficult if not impossible.
Once the issue of immediate vicinity is settled the controversy leads to another issue that whether the straight baselines should be drawn from the seaward edge or landward edge of islands. Jessup in 1927 expressed that; ―In the case of archipelagos the constituent islands are considered as forming a unit and the extent
811 Reisman & Westerman, Straight Baselines, (1992), 89. 812 Roach and Smith, Excessive Maritime Claims, (2012), 63. 813 Prescott, Straight Baselines: Theory and Practice, 13-14.
185 of territorial waters is measured from the islands farthest from the centre of the archipelagos‖.814
Contextually, guidance may be sought from archipelagic lines for the resolution of straight baselines from fringing islands. In accordance with UN study, the requirement of UNCLOS Article 7(1) concerning fringing islands ―along the coast‖, means that the islands which situate perpendicularly to the coast would not qualify as fringe of islands.815 It appears not only logical but basis of the very concept of phrase ‗along the coast‘. Fringing islands 25 degree plus or minus 90 degree is certainly perpendicular and cannot be called along the coast. Taking lead from archipelagic lines it seems logical that single segment of 65NM joining two islands in the fringe may be permitted. Similarly islands within 48NM from the mainland should be treated legitimate. These lines may be allowed from the seaward end of island and in case the line exceeds 48NM, then state is to draw straight line from landward side of island.
Conclusion
The fringe of islands criteria rose from Skjærgaard concept of Norwegian coast. The ICJ while adjudicating on the Anglo-Norwegian case allowed the application of straight baselines on coastal configurations fringed by islands. Just like deep indentation and cut into condition, the fringing of coast parameter in the immediate vicinity is devoid of any arithmetical objective test for its practical execution. None of the instruments; ILC draft, TSC or UNCLOS could produce an agreed criteria to obviate uncertainty. The ordinary meanings, object, purpose and preparatory works are not helping either. The state practice is too distributed and inconsistent to emerge into any customary legitimacy. The disputes of state parties are mostly on controversial islands between the states instead of general definition or criteria. The states are arguably reluctant to resort to international judicial forums for the fear of uncertainty of results and throwing their authority on the mercy of a tribunal.
814 Philip C. Jessup, The Law of Territorial Waters and Maritime Jurisdiction, (New York: G. A. Jennings Co. 1927), 457. 815 UN, Baselines: An Examination, (1989), para 43 at 21.
186 Historically the tribunals comprise non-technical persons who do not go into technical details and decide by adopting old fashioned pie-slicing approach. There is no other way except to acknowledge inadequacies in the law of sea regarding defined parameters of fringing situations.
The strict US view of the presence of at least three islands to fringe the coast, masking of 50% mainland, distance of no more than 24NM between the fringing islands and distance upto 48NM of such islands from mainland is not workable in a majority of coastal scenarios. The criterion of at-least more than one islands to from fringe including rocks should be acceptable for amicable resolution. The masking condition should be relative quantitatively and qualitatively. The academic debates and writers‘ opinions would do nothing more than putting ‗new wine in the old bottle‘ unless the coastal states take initiative for consensual approach. The issue necessitates international comprehensive formula to cater broad coastal situations for agreeable results. The discussion of issue boils down to deduction that 65NM mile single segment between the fringing islands may produce a resolve. Similarly maximum 48NM single segment may be adopted for measuring a distance from fringing island to mainland either from landward side or from seaward side.
The next chapter deals with some secondary issues relating to straight baselines which may be quite helpful in complete understanding of the straight baseline concept.
187 CHAPTER 9
MISCELLANEOUS ISSUES RELATING TO STRAIGHT BASELINES
Article 7(1) of UNCLOS carries nucleus conditions to decide whether the permissibility or otherwise of the straight baselines exists substantively. Once coastal configuration of a state qualifies the criterion for such lines there are many procedural steps involved in the construction of straight baselines. The lower portion of Article 7(1) pertains to procedural applicability when it amplifies that straight baseline method may be employed by joining base-points appropriately. Article 7(3) concerns about the non-departure of straight lines from general coastal direction and sufficient close linkage of sea area enclosed between land and these lines. There is a significant distinction between the primary and secondary steps. The first set of steps helps in deciding whether drawing of baseline is possible and second set of steps is from where and how to apply these lines.
Apart from the above said procedural requirements, there are some other issues requiring pertinent attention like segment length of baseline and publicity of charts showing straight baseline coordinates. In addition there are some related concepts like rigid versus flexible interpretation of straight baseline parameters and whether Article 7 acquires the status of customary international law. Discussion on these issues is considered of great value for composite understanding of the straight baseline concept.
Appropriate Base-points
The primary geographical determinants816 are whether a coastline qualifies for the application of straight baseline system or not. Once the coastal state decides to legitimately employ these baselines, the next important step is the selection of appropriate points or base-points. UNCLOS places certain obligations on the
816 Presence of either ‘deep indentation and cut into’ in the coast or a coast fringed with islands in immediate vicinity. Source: UNCLOS, Article 7(1).
188 selection of base-points. The base-points chosen shall follow the general coastal direction ensuring sufficient close linkage of seawater enclosed by the lines. The base-point shall not situate on low-tide elevation unless it fulfils other conditions.817
The terms ‗appropriate‘ and ‗base-point‘ have not been defined in the UNCLOS. Appropriate is a relative term and is subject to various interpretations. Nonetheless, Article 7(4), by prohibiting LTE from being base-point, hints that feature used as base-point should be permanent and identifiable like headlands, rocks or offshore islands. The UN study defines the base-point as;
―A base-point is any point on the baseline. In the method of straight baselines, where one straight baseline meets another baseline at a common point, one line may be said to ―turn‖ at that point to form another baseline. Such a point may be termed a ―baseline turning point‖ or simply ―base- point.‖818
About straight baseline choice by states, ICJ pronounced that; ―This method consists of selecting appropriate points on the low-water mark and drawing straight line between them.‖819 The base-point criterion remained debatable in TSC negotiations being technical and very difficult to provide a mathematical precision. US desired to restore the precise criteria decided in Anglo-Norwegian case. US proposed that the straight baselines should be expressed joining base-points of such lines on the mainland islands or low-tide elevations.‖820
The text of Article 7(1) does not explicitly specify as to where the base-point would situate? Would base-point lie on the charted low water line? It is true that answer is not provided with specificity but inference can be drawn from Article 7(2) which refers to low water line. The UN study on baseline suggests the locating of
817 Low-tide elevations housing lighthouses, similar installations which remain above sea level permanently or drawing of baselines gets general international recognition. Source: Article 7(4) of the UNCLOS. 818 UN, Baselines: An Examination, (1989), 51. Also in George K. Walker, Definitions for the Law of the Sea, (Leiden / Boston: Martinus Nijhoff Publishers, 2012), 113. 819 Anglo-Norwegian case, 129-130. 820 O’Connell, LOS, Vol-I, (1982), 208.
189 appropriate points on territory or on or above the low-water line of the state drawing baseline. The preponderant view of the UN study is that the point should lie on the charted low-water line.821
The interpretation in the UN study is considered appropriate as, it is the land which confers rights in the sea. Base-points on sea may not only emerge into spatial expansions seaward but also lead to uncertainties for other states. If liberal interpretation on base-points is acquiesced, it may have domino effect and ultimately may create opinio juris and customary law, at least regionally. Straight baseline base-points and coordinates are not as clear as normal baselines have. The inappropriate base-points may complicate the situation further in the identification of maritime boundaries against the common object of straight baselines.
In the practice of states, it is evident that generally every state relies on the base- points suiting to their advantage. Notwithstanding this, in cases of boundary delimitation between the states compromises are generally done for settlement of boundary disputes for greater interests. In Eritrea/Yemen Arbitration, ICJ clarified that deciding on the base-points to steer the course of delimitation of the international boundary was the responsibility of the court822 and it determined the appropriate base-points to be used.823 Reisman is dissatisfied with the international judicial forums as he feels that they are inclined to ignore, instead of, criticizing the exorbitant straight baselines used by the litigant states.824 In Romania/Ukraine case, ICJ emphasized that on selecting base-points on the physical geography of the relevant coasts, the court must not rely on the points of the choice of any of the parties while delimiting the EEZ and continental shelf.825
821 UN, Baselines: An Examination, (1989), para 51 at 24. 822 Eritrea/Yemen Arbitration Award 1996, Second Stage: Maritime Delimitation, para 142. 823 Ibid., para 146. 824 Reisman, "Eritrea-Yemen Arbitration", (2000), 732. 825 Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, ICJ Reports 2009, p. 61, para 137 at 108.
190 Another issue may arise with respect to manmade features used as base-points like harbour works, breakwaters etc. Inappropriate base-points lead to proliferation of wrong or excessive claims due to competing interests of states. Unfortunately the trend of states for selection of inappropriate base-point is being resorted unabated. The states do not seem willing to review their wrong base-points except in cases where they are compelled due to dispute on boundaries delimitation.
The object of chalking out some fundamental conditions for adopting straight baselines is to avoid its misuse while permitting for genuine irregular or complicated coastal configurations. It may be justified to say that base-points covet the same position for the drawing of correct straight baselines as straight baselines occupy for proper limitation and delimitation of maritime boundaries. Straight baselines are starting point for limitation of maritime zones whereas base-points are the starting point for straight baselines. In some cases base-point are also starting point for delimitation of maritime boundaries between states. It bears pertinence that the distance advancing seaward minimizes the impact of base-points on maritime boundaries.
The undue choices of base-points, therefore, do not necessarily emerge into excessive gains concerning EEZ, continental shelf or extended continental shelf claims. The selection of improper base-points by placing them offshore at sea results in unduly long segments of straight lines and excessive maritime claims as an immediate impact. Choosing of base-points by the states at their wish is neither the true interpretation of Article 7 nor is inconsonance with the spirit of international law.
Length of Straight Baseline Segment Criterion
The segment length of straight baseline has proved one of the most controversial issues after the primary prerequisites for employing straight lines. Uncertainty and vagueness is an enduring theme in straight baseline conditions. The segment length
191 of straight baseline is another grey area devoid of any certain parameter. Francois, the special rapporteur, proposed three drafts on territorial waters provisions and suggested that 10NM straight baseline segment could be fixed. In 1954, ILC while adopting its first draft regarding Territorial Sea regime, maintained the distance of 10-mile permissible length for straight baselines.826 Later in 1955 draft ILC omitted maximum length criterion of straight line.
Initially UNCLOS-I recognized827 10NM limit for a straight baseline segment but due to lot of contention between differing views of states it was rolled back. TSC and UNCLOS do not lay down any arithmetical distance of straight baseline segment length. The proposal, by a few states, for fixing maximum length of straight baselines during negotiation of UNCLOS-III could not muster support from the states in general and idea was abandoned.828 Westerman has made out a 12 miles limit for the base-point, measured from the low-water line. Straight baseline segment should also not be beyond 24 miles from the low-water line.829 The point of view appears to be the deduction from Article 4 of UNCLOS that states; ―The outer limit of the territorial sea is the line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea.‖
An attempt to introduce 15 miles maximum length for any individual segment of straight baseline was made at UNCLOS-I but it could not succeed.830 In the Norwegian decree of 1935 the distance of adjacent islands between points 20 and 21 is 44 miles. The ICJ in Anglo-Norwegian case upheld the validity of 44 miles long straight baseline single segment.831 Prescott and Schofield are of the opinion that suggestion of a distance less than 44 miles seems unreasonable when eight segments of the 1935 Norwegian baseline were exceeding 24NM in length and ICJ did not find
826 ILC Yearbook 1954, Vol-I, 83. 827 ILC Yearbook 1955, Vol-II, 267-268. 828 ILA, Committee on Baselines, (2014), Para 36. 829 Westerman, “Straight Baselines”, (1988), 261. 830 Churchill and Lowe, LOS, (1999), 37. 831 Anglo-Norwegian case, Dissenting Opinion of Sir Arnold D. McNair, at 167
192 them inconsistent with the international law.832 US stance of suggesting 24NM being the maximum length of a baseline segment does not withstand the Anglo- Norwegian judgment which legitimized a single segment of 43.6NM between base- points 20-21 in the Norway‘s coast.833 The length of Norwegian segment from its mainland to base-point Vesterfalleti Gåsan measures 44.3NM.834
Most of the standards for the straight baseline system have been evolved from Anglo-Norwegian fisheries judgment. Then following a figure of 24NM having no justifiable cogency for maximum length of baseline segment comparing 44 miles would not be acceptable to the states. Some scholars have rendered support to US proposal of 24NM since 1987, yet it has not received any recognition either at international law or adoption through state practice.835
During negotiation of UNCLOS-I, Iceland stressed that there was no foundation for limitation on maximum length of straight baselines in the fisheries case judgment.836 François, the Special Rapporteur, had voiced his fears about discretion left with the states due to non-presence of specified criteria when he argued that; ―If the Commission wished to codify international law, or establish its rules by means of conventions, it could not leave unlimited discretion to Governments in all matters‖.837
The difference of opinion is not easy to resolve in the absence of any objective test of a binding nature that is not available in the UNCLOS text. The state practice revolves around the interests and geographical situations of each state. The works of
832 Prescott and Schofield, Maritime Political Boundaries, (2005), 146. 833 Louis B. Sohn et al., Cases and Materials on the Law of the Sea, 2nd Ed., (Netherlands: Koninklijke Brill, 2014), 241-242. Also in Prescott and Schofield, Maritime Political Boundaries, (2005), 146. 834 Bjørn Geirr Harsson and George Preiss, Norwegian Baselines, Maritime Boundaries and the UN Convention on the Law of the Sea, Arctic Review on Law and Politics, Vol-3, 1/2012, p. 108–129 at 116. 835 ILA, Committee on Baselines, (2014), Para 36. 836 ILC Yearbook 1955, Vol-II, 46. 837 ILC Yearbook 1954, Vol-I, 70.
193 most of the publicists and various studies are either protracted or tinged in the rigid stance leading to their rejection. Sometimes these studies being theoretical are difficult to practice in real time situations. The very basic problem in standardizing the precise test lies with individuality of each state‘s own geographical and coastal features.
Applying a single yard stick certainly means disadvantage to the states which would be out from this regime particularly from a narrow margin. It is not easy to draw a line, hard and fast, whose implementation again rests with the individual state. It is but natural that a rigid condition may be flexed by lowering stringent standards. However, setting out rigid and stricter prerequisites after offering flexible view is difficult to work. US demand for reducing the proposed length criteria of straight baselines from 48NM to 24NM is not likely to receive acceptance in future as well.
The US study could not get recognition apparently due to multifaceted reasons. The foremost being the very strict criteria proposed which had been practically un- implementable on the majority of states. The states being sovereign in their relations do not want any dictation from other states. Non ratification of UNCLOS by the US but emphasizing and interpreting its provisions for implementation by all the states of the world is considered another stumbling block. The shifting stance of US on length of straight baselines segment is another grey area of guidelines issued by them. The UN study refrained from giving any sweeping suggestions or condemnation on deviations commonly done by the coastal states. UK delegation suggested that to ensure general directional trend of coast, a limit on maximum length of straight baselines be placed corresponding to ‗bay‘ ensuring the non- utilisation of a straight line from an isolated base-point from the coastline.838
To provide incentive to the states to review their already drawn baselines, maximum length of straight baselines may be fixed as 60NM. Similarly, from fringing islands
838 UNCLOS-I, Vol-I, 102.
194 the segment length between the two fringing islands may be fixed as 65NM. The maximum distance of fringing island from the mainland may be fixed as 48NM whether from landward edge of fringing island or from seaward outer edge. Nonetheless, the distance should not exceed 48NM. If distance enhances 48NM in case of using the outer edge, then state should measure fringing islands from the inner edge. Graph-3 presents a divergent state practice on straight baselines segment employed.
Graph-3839
Maximum Length of States' Straight Baseline Segments 25 22 20 15 11 11 10 7 5 1 0 Less then 50 Between 50 to Between 60 to Between 100 to Over 200 NM NM 60 NM 100 NM 200 NM
It is evident from the statistics in the graph-3 that if maximum 60NM single segment of straight baselines is allowed, the compliant states would be greater in number than the non-compliant states. This step may exert pressure on other states to review their excessive segments. Adoption of only strict stance may result into rejection and utilization of unchecked straight baseline segments by the states. Scovazzi has been quoted in the US study that the baseline length of 15NM in the TSC had very nearly reached.840 It means that when breadth of territorial sea was 3NM, the length of straight baselines was almost accepted as 15NM which comes to five times the breadth of territorial sea at that time. By the same analogy if present breadth of
839 Table adapted from Sources: US, LIS Numbers; 7, 116, 28, 44, 14, 80, 117, 103, 111, 76, 19, 113, 5, 52, 42, 22, 13, 48, 37, 38, 40, 30, 51, 124, 34, 35, 3. 120, 82, 15, 8, 41, 4, 29, 61, 118, 33, 27, 20, 54, 121, 39, 47, 53, 31, 122, 32, 107, 23, 21, 99, 6. Also in Law of the Sea Bulletin No. 71 (United Nations: New York, 2010), 26. Also in Prescott and Schofield, Maritime Political Boundaries, (2005), 654-655. 840 LIS (1987), No. 106, 14.Also in UNCLOS-I, Vol-I, para 11 at 62.
195 territorial sea i.e. 12NM when multiplied by 5, it comes to 60NM which may be applied to resolve the segment length issue.
„General Direction of the Coast‟ Criterion
The lack of standard subjective definitions and procedural vagueness in TSC terms and phrases concerning straight baseline had been evident. The procedure adopted at UNCLOS-III itself allowed the ambiguities to devolve in UNCLOS. Ultimately it could not provide any precision or mathematical model for determining the bounds for general direction requirement. In continuity of this ambiguity the ―general direction‖ of the coast condition is devoid of any guidance for its interpretation and application. The difference of opinion also exists on whether the ‗general direction‘ of the coast is to be considered from the mainland or from the offshore insular features. Article 7(3) reads; ―The drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast, [.....]‖.841
US argue that general direction should be established from mainland coastline.842 Francois in 1952 convened a Committee of Experts which acknowledged defeat of its endeavours in introducing clarity and precision to these terms.843 The issue is difficult to resolve if it does not have a precise point to start with. General direction condition is one of such situations where the starting point of the coast or mainland is unclear. In view of vagueness at the basic level, the opinion of Prescott and Schofield is considered quite justified when they opine that attempts to find mathematical precision for the straight baselines are mere ‗interesting academic activity‘. They feel that these are doomed to fail due to their impracticality in the real world.844
Since almost every expression in the article is full of imprecision, therefore, about general direction condition, Prescott and Schofield suggest that; ―Perhaps the best
841 UNCLOS, Article 7(3). 842 LIS (1987), No. 106, 16. 843 Reisman & Westerman, Straight Baselines, (1992), 95. 844 Prescott and Schofield, Maritime Political Boundaries, (2005), 157.
196 advice is to pay little attention to this requirement.‖845 The ‗general direction‘ criterion is already unclear and a further condition of not departing of these lines from such direction and that too to an ‗appreciable extent‘ stretches the complexities. The issue has been conceived from the ICJ decision in Anglo-Norwegian case where the court made a maiden use of this expression. The court pronounced that; ―The drawing of base-lines must not depart to any appreciable extent from the general direction of the coast‖.846 What angle is the standard and what would be called its deviation is absolutely vague and imprecise. It seems that the condition is nothing more than an added confusion and vagueness. Failure to determine any specific test for the expressions provides ample opportunity for the states to interpret the terms and liberally deduce the meanings of their advantage.
The general direction and baseline segment length conditions are although important but are not as paramount as the primary conditions like indentation and fringing of the coast are. Churchill and Lowe hint at the priority of conditions. If it is established to have straight baselines in certain situations, it then requires observing other conditions like appreciation of departure from the coast in terms of general direction.847 ILC members expressed their views during the preparation of draft TSC that if there was appreciable departure of the actual low-water line from charted baselines, then such chart was challengeable before any legal tribunal.848
Tanaka on examination of the relevant text of judgment in the Fisheries case thinks that the Court; ―seems to imply that ‗the general direction of the coast‘ provides the principle governing the baseline; and that the straight baseline method is a result of the application of this principle‖.849 US study emphasizes by quoting Alexander and Hodgson that in the Norwegian coastline, there was only one deviating segment of
845 Prescott and Schofield, Maritime Political Boundaries, (2005), 157. 846 Anglo-Norwegian case, 133. 847 Churchill and Lowe, LOS, (1999), 35-37. 848 Michael W. Reed, Shore and Sea Boundaries, Vol-3, Washington: US Government Printing Office, 2000), 180. 849 Tanaka, International LOS, (2012), 47.
197 over 15° from general direction of coast.850 US as a general rule, suggests permitting of maximum 20° deviation from the directional trend of opposite mainland coastline.851 The general direction criterion is not an absolute and precise test for every coast rather is a relative term. It depends largely on the configuration of the coast as well as length of coastline under consideration. The ICJ suggested that ―one cannot confine oneself to examining one sector of the coast alone, except in a case of manifest abuse [.....]‖.852 Westeman suggests to the United States to declare and adopt 25° general direction of coast deviation from low water mark.853
It is noteworthy that ICJ in the Fisheries Case, observed that the concept of the general direction of the coast; ―is devoid of any mathematical precision‖854. O‘Connell had very rightly pointed out that general direction concept; ―is a matter of appreciation, not of scientific discovery, and this necessarily requires that a considerable margin of appreciation be applied in favor of the coastal state‖.855 Views similar to O‘Connell had been expressed by Lauterpacht on 1958 TSC saying that; ―the notion of the general direction of the coast and the application of that test was one that was ―not free from difficulty‖.856 Fitzmaurice at some stage proposed the deletion of the phrase ―to any appreciable extent‖ in the general direction criterion.857 Tanaka also acknowledges that; ―there is no objective test which may identify the general direction of the coast.‖858
UN as well as US studies are in agreement that islands running perpendicular to coast are not to be treated as fringing islands along the coast. Precisely the islands at 75 degree or 90 degree to the coast are to be certainly considered perpendicular. It is
850 LIS No. 106 (1987), 18. 851 Ibid., 16. 852 Anglo-Norwegian case, 142. 853 Westerman, “Straight Baselines”, (1988), 261. 854 Anglo-Norwegian case, 141-142. 855 O’Connell, LOS, Vol-I, (1982), 214-215. 856 Hersch Lauterpacht, The Development of International Law by the International Court, (London: Steven & Sons, 1958), 192. 857 ILC Yearbook 1955, Vol-I, para 79 at 201. 858 Tanaka, International LOS, (2012), 49.
198 considered reasonable that islands which create equal or less than 45 degree with the mainland may be taken as legitimate for this purpose. It would help in taking most of the fringed islands into the cover of legality. Even islands at a far distance though at 45 degree may have the problem of coming into the fold of coast‘s immediate vicinity. The remaining coastal states having fringed systems may be compelled through majority international opinion to repost their formations of straight baseline. The angle upto 45 degree provides a middle course for most of the states to agree upon. It may bring many coastal states‘ delimitation claims into amicable delimitation agreements. Figure-9 showing different angles gives a fair idea with reference to ‗general direction of the coast‘.
Figure-9859 (Edited and emphasis added) General Direction of the Coast
Close Linkage of Water with the Land Domain
UNCLOS requires that for a straight baseline to be legitimate the areas lying within these lines must have sufficient close linkage with the land domain. The idea entered into UNCLOS from ICJ decision in Anglo-Norwegian case where the court decided that for waters to come into the regime of internal waters must have sufficient close
859 LIS No. 106 (1987), 18.
199 linkage with the land domain.860 Article 7(3) reads; ―[…..] and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters‖.861
As usual any arithmetical test is unavailable as to what is sufficient? What does linkage mean? How much linkage is required with the land domain? What does ‗closely‘ connote? What kind of linkage is necessitated? Practically this condition has been disregarded by a large number of states being a secondary condition or prohibition. Tanaka perceives that there is no objective test for identifying close linkage criterion between the sea within straight baselines and the land domain.862 Much attention has not been paid to this issue even by the states who are persistent objector of excessive straight baselines. When flagrant violations have been committed on core requisites of drawing this system of baselines, it may not be very conducive criticism on this aspect. If the basic principles of straight baselines are followed by the states judiciously, the ‗close linkage issue of waters enclosed within the lines would be automatically resolved in majority of cases. The famous maxim of Emily Dickinson, ―take care of small of things, the big things take care of themselves‖863 may not be applied in this scenario rather the reverse would be true.
The usual uncertainties in the UNCLOS have prevailed on the aspect of sufficient close linkage of water enclosed between the straight baselines and land domain. No practical interpretation is available to test whether such enclosed waters have sufficient linkage with the land mass of a coastal state to form part of internal waters and to what extent. The Hydrographic technical manual on UNCLOS suggests that there is non-availability of any definitive criterion in terms of physical proximity to
860 Anglo-Norwegian case, 133. 861 UNCLOS, Article 7(3). 862 Tanaka, International LOS, (2012), 49. 863 Source: http://www.quoteworld.org/quotes/3670 (accessed on 6 June 2015).
200 determine ‗closely linked‘.864 Close linkage in practice has been understood to mean that the coastal state exclusively uses such sea areas exclusively or mainly.865
Bateman and Schofield observed that seemingly strict criteria in Article 7 of UNCLOS had been very flexibly interpreted or in practice even ignored by many coastal States due to uncertainties. It results in proliferation of excessive claims.866 The preparatory work of ILC shows that clarity was not present on the wording ‗closely linked‘ at that time either. Lauterpacht, Special Rapporteur, had suggested for prescribing precise rules on the subject.867 During negotiation, delegate from Iceland remarked that the matter of ‗close linkage of waters to land domain‘ related to geographical situations required appreciation and this power is rested with the coastal state.868
Publicity of Charts
The charting requirement and publicity of baseline coordinates is one of the most important and less heeded aspects of law of the sea. Just like secretive diplomacy, secrecy in drawing straight baselines breeds confusions, doubts and dissatisfactions. The same was the spirit behind the UN exhortation concerning registration of bilateral treaties with the UN.869 The study reveals that charting publicity is neither prevalent in the state practice nor in the domestic legislations of states. During Alaskan Boundary dispute between UK and USA, Britain argued; ―you cannot protest against a thing you have never heard of‖870. The requirement of charting the straight baselines and their dissemination through due publicity had been ordained in the TSC.871
864 IHB, Manual (2006), Para 4.2.3. 865 R. Bernhardt (ed.), Encyclopedia of Public International Law, Vol-11 (1981), 45-46. 866 Bateman and Schofield, “State Practice Regarding Straight Baselines, (2008), Footnote 22. 867 ILC Yearbook 1954 Vol-I, Summary Records of the Sixth Session (3 June - 28 July 1954), para 17 at 69. 868 ILC Yearbook 1955, Vol-II, Documents of the Seventh Session including the report of the Commission to the General Assembly, 46. 869 UN Charter, Article 102(2). 870 Jon Robert Victor Prescott, Gillian Doreen Triggs, International Frontiers and Boundaries: Law, Politics and Geography, (Netherland: Martinus Nijhoff Publishers, 2008), 177. 871 TSC, Article 4(6).
201
UNCLOS expanded the area by demanding charts of adequate scale for all kinds of baselines used for measuring territorial sea. Article 16(1) of UNCLOS requires the providing of list of geographical co-ordinates as an alternate substitution by specifying geodetic datum. The convention also obligates the depositing of such charts or geographical coordinates with the UN Secretary General.872 Article 16 of UNCLOS is more comprehensive covering lines across bays and rivers that were not available in Article 4 of TSC. It seems logical as the main zone under the TSC was territorial sea whereas almost all the zones under UNCLOS have relevance with either of the baselines. The publicity may provide opportunity to the other states to know about the status of coastal state claims, to make comparison, assess and review their own straight baselines. The other states may object or agree with the coastal state claims. It helps in evaluating the international trends in form of state practice.
To meet the emergent requirement of depositing charts, geographical coordinates and maps by the states, the General Assembly requested the UN Secretary General for establishing such facilities relating to national maritime zones. The Resolution requested for formulation of a system for recording these documents and their publicity.873 The DOALOS, office of legal affairs, located in the UN Secretariat, houses these facilities in consonance with the requirement of UNCLOS.874 This department helps in identifying inconsistencies, if any, in the deposited information by its Geographic Information System.875 UNCLOS has used the word ―shall‖876 with the requirement of publicity which indicates the legal binding and not an option.
The issue of publicity in compliance with the legal requirement is gradually gaining ground. In 2009 in a maritime delimitation case between Romania and
872 UNCLOS, Article 16(2). 873 Resolution Adopted by the General Assembly of United Nations in its Forty-ninth session, Document No. A/RES/49/28 dated 19 December 1994, para 15(f) at 5. 874 DOALOS, Office of Legal Affairs, Handbook on the Delimitation of Maritime Boundaries, (United Nations: 2000), para 65, 11. 875 Ibid., para 67, 11. 876 UNCLOS, Article 16(2).
202 Ukraine, the requirement of publicity of charts and depositing a copy with UN came up for discussion.877 At seventeen different situations, UNCLOS demands publicity requirements for multifarious purposes including straight baselines.878 Articles concerning publicity unveil no legal sanction against the state which omits to carry out this ―due‖ international responsibility. If a state keeps the drawing of artificial lines as a trump card, how can other states accept them or reject them. There is a meagre possibility for either acquiesce or being objector of these lines. The case in point is the Anglo-Norwegian case wherein court established many principles elucidating; long usage of straight baselines by Norway, acquiesces of other states and opposability of Norway on applicability of 10 mile rule.
The maps and charts, apart from UNCLOS requirement, carry with them an evidentiary value from legal perspective for the states trusting them. In maritime boundary delimitation disputes, the maps, charts or geographical coordinates may act as strong determinants. Evidentiary value of maps was acknowledged during ―1977 Beagle Channel Arbitration‖.879
Reisman posits that in view of discretionary and subjective criteria of straight baselines the requirement of publicity is enhanced as an essential component for validity and opposability with reference to third states.880 The unpublished straight baselines pose uncertainty for the international users while traversing for enjoying freedom of navigation due to difference in legal regimes seaward (vers le large).881 Oude contends that in cases where due publicity of maritime zones have not been done by the states, in case of conflict on location, it would be un- opposable to those unaware states.882
877 Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, ICJ Reports 2009, p. 61, para 136 at 107-108. 878 UNCLOS, Articles 16(2), 21(3), 22(4), 24(2), 41(2), 41(6), 42(3), 44, 47(9), 53(7), 53(11), 60(3), 75(2), 76(10), 84(2), 134(3), and 211(3). 879 Reports of International Arbitral Awards dated 18 February 1977, Vol-XXI, Dispute between Argentina and Chile concerning the Beagle Channel, (United Nations: 2006), para 142 at 167-168. 880 Reisman, "Eritrea-Yemen Arbitration", (2000), 732. 881 Ibid., 733. 882 Davor Vidas and Willy Ostreng, Eds., Order for the Oceans at the Turn of the Century, (Netherland: Martinus Nijhoff Publishers, 1999), 459.
203
The ground reality is that only a few states883 have publicized data of their straight baselines and the requirement could not assume geometric progression in the spirit of UNCLOS. The recent UN data shows that 68 states have deposited their charts with the UN Secretary General.884 To sum up the issue of charting and publicity of straight baselines, it can be said with certainty that omission of this onerous responsibility under UNCLOS bears multifaceted repercussions. These may, inter alia, include; ambiguity in the territorial limits, administration of maritime zone regimes by coastal states and availing of rights by other states with confidence. The showing of international boundaries on charts and maps is a sensitive area which needs extreme attention. There are instances too that the use of inaccurate maps has caused the armed conflicts and protests of states at diplomatic level.885
Flexible Versus Rigid Criteria for Straight Baselines
The strict and flexible interpretation of straight baseline principles has acquired a polarization situation. Once it is agreed that subjective and objective clarity is missing on straight baselines criteria prescribed in UNCLOS, then rigid and flexible point of view may not be obviated. Nonetheless, mere intellectual criticism is not likely to serve any purpose in the furtherance of uniformity of rules. Certainly, the purpose of scholarly work and endeavours of the objecting states against excessive claims is to redress the wrong claims and stop their proliferation for a disciplined system of straight baselines. It is also a reality that both the stances are not free from their vested interests altogether.
Sometimes there are violations by a few states which hardly provide them any advantage and at the same time do not affect international community or other states of the region. Such states instead of gathering technical data or finding
883 Blake, World Boundaries Series, Vol-5, (2002), 131. 884 Source: http://www.un.org/depts/los/LEGISLATIONANDTREATIES/depositpublicity.htm (accessed on 9 October 2014). 885 Gerald Blake, The Depiction of International Boundaries on Topographic Maps, (IBRU: Boundary and Security Bulletin, 1995), 44.
204 scientific reasons, apply straight baseline system as a whole to different localities without realising any advantage. Occasionally states claimed this system of baselines just because their neighbours or their rival states adopted it. The question is then what may be the solution? Whether a very strict stance taken by a few states should be continued unsuccessfully? Whether unfettered flexibility exhibited by the coastal states to do their will may be allowed? Or should a middle course be adopted between complete flexibility and complete strictness?
O‘Connell, before coming into force of UNCLOS, evaluating states practice wrote; ―The attempt to restrict the straight baseline technique to coasts which are at least as complicated as that of Norway has failed‖.886 The liberal application of criteria enshrined in Article 7 is evident from excessive claims by many states. The objections on excessive straight baseline claims from states are a few with the exception of US which has routinely lodged their protests887 against claims they considered contrary to the laid down provisions of UNCLOS. US has issued series titled ―Limits in the sea‖ objecting a number of straight baseline claims by different coastal states. In this regard US have protested against straight baselines of over 42 countries.888 No such consistent stance has come from other countries as persistent objector.
Notwithstanding that no immediate outcome of US objections has been seen, it is a great effort to realize the states, with arguable straight baselines, that they are not unchecked. The strict criteria proposed by the US for applying straight baselines versus very liberal approach adopted by some coastal states circumventing the spirit of Article 7 may be appreciated. Nevertheless, this work could not halt the pace of excessive straight baseline claims. With the passage of time, unjustified claims would become stronger. It is quite apposite that in order to implement the provisions of straight baselines in true spirit, compromise may be struck between two extremes; rigid and flexible criteria. Since practical principles on baselines are
886 O’Connell, LOS, Vol-I, (1982), 214. 887 J. Ashley Roach and Robert W. Smith, Excessive Maritime Claims, Vol-66, (Newport: Naval War College, 1994), 44-48. Also Churchill and Lowe, LOS, (1999), 57. 888 Roach and Smith, Excessive Maritime Claims, (2012), 74-82.
205 absent in the UNCLOS, no ideal or strict adherence to guidelines suggested by the US or advice of publicists may be serving the purpose.
Attempts of US authorities by developing straight baseline standards for helping countries to determine appropriateness of their applied straight baselines appears to have failed.889 A wide gap exists amongst liberal approach taken by the coastal states on Article 7, the strict view by a few states particularly US and ICJ judgments. When commonalities of different approaches are scarce, preparatory work is mostly unhelpful, state practice is divergent and stances are hard? The answer is a compromise again on Article 7 of UNCLOS which took its birth from a number of compromises before its conclusion.
Does State Practice Acquire Customary Law on Article 7 of UNCLOS?
Customs are treated as basic source of international law coveting a central place. It has been enumerated as second amongst the principal sources of international law enshrined in the ICJ Statute.890 The issue of acquiring customary status of treaties or conventions has been deliberated by the ICJ in various cases. A multilateral convention may attain the customary international law status in three ways. A provision of a treaty may transform into; ―declaratory of pre-existing custom‖, ―crystallize customary law in the process of formation‖ or ―generate new customary law subsequent to its adoption‖.891
In the modern times treaties or conventions have attained much importance due to close global interactions. Nonetheless, the customary law still occupies an elegant position in international law. In certain cases the convention provisions, acquired the customary norm status in a short span of time. Evolution and
889 Prescott and Schofield, Maritime Political Boundaries, (2005), 146. 890 ICJ Statute, Article 38(1)(b). 891 North Sea Continental Shelf, Judgment, ICJ Reports 1969, p. 3 at 41. Also in Nandasiri Jasentuliyana ed., Perspectives on International Law, (UK: Kluwer Law International Sterling House, 1995), 122. Also in Yoram Dinstein and Mala Tabory Ed., International Law at a Time of Perplexity: Essays in Honour of Sabtai Rosenne, (Netherland: Martinus Nijhoff Publishers, 1989), 718.
206 acceptance of an EEZ concept may be a current time example.892
It is possible that a customary international law may take its start from a unilateral practice or action of a state taking the form of a usage. Stark posits; ―Usage represents the twilight stage of a custom. Custom begins where usage ends‖.893 Opino juris when combined with usage provides the existence of customary law. The state practice is objective element whereas opinio juris is subjective element of the custom894. Kammerhofer remarks that; ―Without opinio juris custom is a mere fact, not a norm‖.895
Most of the UNCLOS provisions have been admitted by the ICJ as well as by some national courts to attain the status of customary international law.896 US have not ratified UNCLOS, yet she agrees that most of the provisions of convention conform to the existing practice and maritime law.897 In order to establish whether a particular UNCLOS provision has acquired the authority of customary international law needs a lot of legal evaluation and analysis from various angles.
It is unequivocally clear that straight baseline as a system has acquired the status of customary international law. Many writers have asserted this position of straight baselines.898 At the same time to give a declaratory statement about opinio juris or customary law, about the conditions prescribed for the application of straight baselines would not be an easy answer. The legislations of coastal
892 James Crawford and Donald R. Rothwell Ed., The Law of the Sea in the Asian Pacific Region: Developments and Prospects, (Netherlands: Martinus Nijhoff Publishers, 1995), 130. 893 J. G. Starke, Introduction to International Law, 10th Ed., (London: Butterworth & Co., 1989), 36. 894 Jörg Kammerhofer, Uncertainty in International Law (A Kelsenian Perspective), (London: Routledge, 2011), para 3.1 at 61. 895 Ibid. 896 Kristen E. Boon, Aziz Huq & Douglas C. Lovelace Jr. ed., Terrorism: Commentary on Security Documents: Piracy and International Maritime Security – Developments Through 2011, Vol-125, (New York: Oxford University Press, 2012, 571. 897 Ronald Reagan, “Statement on United States Ocean Policy,” Presidential Document, March 10, 1983, available at http://www.oceanlaw.org/content/president-reagans-policy-oceans-and-law-sea (accessed on 16 November 2014). 898 Louis B. Sohn et al., Cases and Materials on the Law of the Sea, 2nd Ed., (Netherlands: Koninklijke Brill, 2014), 244.
207 states are generally the evidence of state practice on straight baselines. It is interesting to note that UK which opposed Norway against the system of straight baselines itself adopted a series of these baselines off Scottish west coast.899
The state practice on application of straight baselines is neither uniform nor consistent. The practice of states deviating from the spirit of Article 7 seems interest oriented depending on peculiar geographical configurations of the coastal states. The data presents a picture that state practice is generally not supportive of criteria provided in Article 7 of UNCLOS. Commenting on the aspect of state practice emerging into customary law, Churchill and Tanaka think almost in similar terms that practice of states is non-conforming, diverse and un- uniformed to suggest a particular method for drawing straight baselines. There are protests against the individual state practice by other states. This diverse practice is not likely to establish a new customary law.900
The state practice has a pivotal role in shaping up conventional norms regarding interpretation and delineation of international rules. The principle takes firm ground in VCLT methodology of interpretation of treaties as; ―Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation.‖901 The state practice is important and reliable evidence as to what the parties construe from the specific wording through their practice subsequently.902
The divergent practice of states on an issue due to social, economic or political necessity inviting other states for the same for creating a legal binding may not be a custom but a comity.903 State practice requires agreement of other parties
899 US, Straight Baselines: United Kingdom. LIS No. 23 (26 June 1970), 2. 900 Churchill, “Impact of State Practice” (2005), 108. Also in Tanaka, International LOS, (2012), 50. 901 VCLT, Article 31(3)(b). 902 Schaffer, Current Trends, (1981), 138. 903 Gideon Boas, Public International Law: Contemporary Principles and Perspectives, (UK: Edward Elgar Publishing Ltd., 2012), 81. Hereinafter “Boas, Public International Law, (2012)”
208 explicitly through agreement or implicitly through subsequent conduct.904 When state practice becomes uniform and constant for a long period of time, being unchanged, creates rights and obligations.905 The state practice coupled with Opinio Juris, can create a new customary rule which is a great source of international law.906 The conduct of states, pre and post, adoption of a convention on any particular issue is relevant to elicit the intention of the state parties. Actions, reactions, assertions, legislations, agreements, objections or protests by the states are all relevant factors. At the same time, the number of states required for a practice to become a customary law depends and varies on the nature of the issue.907
D'Amato is a strong advocate of distinction between general908 and special909 customary international law. The distinction between two categories of customary law had also been made by the Blackstone in reference to the English common law. He emphasises the historic distinction between three customs of which two customs are considered of relevance;
―1. General customs, which are the universal rule of the whole Kingdom, and form the common law, in its stricter and more usual signification.
2. Particular customs; which for the most part affect only the inhabitants of particular districts.‖910
Does unilateral practice of states on straight baselines forms special customary
904 Trinh Hai Yen, The Interpretation of Investment Treaties, (Netherlands: Martinus Nijhoff Publishers, 2014), 44. Also in Anthony Aust, Modern Treaty Law and Practice, 2nd ed., (London: Cambridge University Press, 2007), 241. 905 Case concerning Right of Passage over Indian Territory (Merits) (Portugal v. India), Judgment, ICJ Reports 1960, p.6 at 40. 906 ICJ Statute, Article 38(1)(b). 907 Boas, Public International Law, (2012), 79. 908 General customary international law contains rules, norms, and principles that seem applicable to any state and not to a particular state or an exclusive grouping of states. For example, norms relating to the high seas, to airspace and outer space, to diplomatic immunities, to the rules of warfare*…..+. Source: D'Amato, "Concept of Special Custom, (1969), 212. 909 Special customary international law deals with non-generalizable topics such as title to or rights in specific portions of world real estate (e.g., cases of acquisitive prescription, boundary disputes, *…..+. Source: Ibid. 910 Blackstone, Commentaries (M. DCC.LXV), 67.
209 law? Or do the delimitation agreements between two or more states based on excessive straight baseline claims qualify for special customary international law? May the concept of liberal and flexible interpretation of employing straight baselines devoid of principles enunciated in Article 7, at regional level attract special customary international law?
The answer may not be simple. The unilateral practice of an individual state without finding any concurrence of some other states expressly or impliedly may not enable it to claim for any special customary law. The delimitation agreements based on exaggerated straight baselines may evolve a special customary norm provided agreements do not emerge in trespass of high seas. It is due to the categorical provision of UNCLOS which says that no area of high seas may be validly appropriated by any state.911 Any such agreement which is against the spirit of international law is opposable by states not party to it. The ICJ did not accept the applicability of Ten mile rule against Norway under the concept of opposability912. Charney and Alexander consider that;
―Nevertheless, if the parties to delimitation, because of far reaching straight baselines, divide between themselves an area which would otherwise be beyond the permissible limits of their jurisdiction, other states would be entitled to protest against it‖.913
However, it is not clear whether the states who do not protest would be considered having acquiescence or not? In the light of ICJ decision in Anglo- Norwegian case, the non-protesting states may not be able to oppose the violations at delayed and belated stage. Similarly, flexible interpretation of Article 7 devoid of apparent stringent criteria of straight baseline system may or may not acquire the status of special custom. Boas has quoted some scholars who opine that the regional custom, as opposed to general custom, does not require consistent state practice or their uniformity or opinio juris.914
911 UNCLOS, Article 89. 912 Anglo-Norwegian case, 131. 913 Charney and Alexander, Maritime Boundaries, Vol-I, (1993), 156. 914 Boas, Public International Law, (2012), 103.
210
In the light of aforesaid discussion, it may be concluded that general customary law has not yet evolved on the underlying conditions for the application of straight baselines. However majority of states continue employment of straight baselines through flexible interpretation without encroaching high seas. It may acquire a special custom at some stage.
211 CHAPTER 10
IMPACT OF STRAIGHT BASELINES ON CONTINENTAL SHELF
Traditionally the sea has been divided into legal concepts of inclusive and exclusive seas based on the sovereignty and non-sovereignty. The enduring concept concerning the oceans remained stuck-up between more sea appropriation by asserting jurisdiction and more unabridged sea for navigation. The climax of the legal battle is traced back to two opposing doctrines; mare Liberum of Grotius and mare clausum of Selden. Historically both the themes had been interchanging due to interests of states. Even intellectual war between the open sea and appropriation of sea was not without national interests of the two writers. Hugo Grotius represented Dutch whereas John Selden advocated the interests of Great Britain.
The coastal state power emanates from land. In the North Sea continental shelf cases, the ICJ repeated the importance of land on sea powers pronouncing that; ―[…..] the land is the legal source of the power which a state may exercise over territorial extensions to seaward‖.915 Earlier ICJ had declared the same in almost similar terms in the Anglo-Norwegian case.916
The distant the sea area from the coast, less the powers and jurisdiction the coastal state has in the sea. Conversely, far in the sea other states are from the land of a coastal state, the more freedoms they enjoy. Before the UNCLOS, the exclusive sea comprised the internal waters and territorial sea subject to control of a coastal state whereas inclusive sea consisted of high seas for all. The baselines, therefore, had no or negligible effect on the limitations of the maritime zones. The rise of new maritime claims under UNCLOS parcelled the sea into variety of zones and situation has altogether changed. These maritime zones carry with them varying degree of coastal state jurisdiction and powers. Before exploring impact of
915 The North Sea Continental Shelf, Judgment, ICJ Reports 1969, p. 3, para 96. 916 Anglo-Norwegian case, 133.
212 straight baselines on continental shelf and EEZ, taking a brief account of impact on other zones regimes is considered must for clarity of understanding.
Impact of Straight Baselines on Maritime Zones
The baselines once delineated introduce a number of maritime zones bestowing coastal states with absolute sovereignty, sovereignty, sovereign rights and extended seabed claims. Schofield asserts that baselines have an intimate connection with delimitation of maritime boundaries.917 The baselines have critical role in equidistance lines for construction and delimitation of maritime boundaries. UNCLOS explicitly mentions about median lines concerning delimitation of territorial sea.918 No such hard and fast preferred method has been given for EEZ and continental shelf delimitation, due to their interfacing with the inclusive zone (high seas). UNCLOS Articles 74 and 83 enjoins upon the states for achieving agreement through equitable solution based on international law.
UNCLOS enumerates six zones as; Internal Waters,919 Territorial Sea,920 Contiguous Zone,921 Exclusive Economic Zone,922 Continental Shelf,923 and High Seas.924 The states have been declaring some other zones925 as well but they are not recognized as such in the UNCLOS. Figure-10 amplifies different maritime zones.
917 David Freestone ed., The 1982 Law of the Sea Convention at 30: Successes, Challenges and New Agendas, (Leiden: Koninklijke Brill, 2013), 55. 918 UNCLOS, Article 15. 919 Ibid., Article 8. 920 Ibid., Article 3. 921 Ibid., Article 33. 922 Ibid., Article 56. 923 Ibid., Article 76. 924 Ibid., Article 86. 925 Security zones, Exclusion zones, Air Defence Identification Zone (ADIZ) etc.
213 Figure-10
The baseline on it‘s both sides; landward or seaward, impinges upon rights and obligations amongst other states and coastal state and whether landlocked, neighbouring, adjacent or opposite or distant. It makes a great difference if these zones are created from the normal baselines or straight baselines. The straight baselines even adopted in quite lawful manner, push the various maritime zones seaward with appropriation of comparatively far more expanses in internal waters. If these lines are employed imperfectly they enhance the seaward limits significantly, sowing the seed of dispute and breeding controversies between the states. The illicit straight baselines bear repercussions on each and every maritime zone of the sea. Now impacts on different zones are discussed severally.
Internal Waters
The sea area between the straight baselines and the land encompass internal
214 waters. Internal waters generally host; ports, harbours, infrastructures, bay, rivers etc. with full authority and jurisdiction of the coastal state. Internal waters have been described in the UNCLOS as; ―waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State‖.926 The law does not ordain in specific term that internal waters are just like landmass of a coastal state but from the language of UNCLOS article it is not difficult to deduce this conclusion. It reads; ―The sovereignty of a coastal State extends, beyond its land territory and internal waters and, […..], to an adjacent belt of sea, described as the territorial sea‖.927
Despite being a body of water, internal waters are treated as landmass and all the laws of land extend to this area. The roadstead928 may fall within the internal waters, territorial sea or in exceptional circumstances, in other zones. In the Aramco arbitration, it was emphasized that; ―the port of every state must be open to foreign vessels and can only be closed when the vital interests of the State so require‖.929 In practice the states avoid placing stringent conditions in internal waters for attracting business in their ports. There is no uniformity in the implementation of regulations in the internal water under international maritime law. The laws and regulations vary from state to state and even intra state ports. Commenting upon sovereignty of state in the internal waters, the Nicaragua case declared; ―the coastal State may regulate access to its ports‖930.
Technically, the wrongly drawn straight baselines may occupy more than permitted expanse of water which could have been either part of territorial sea for innocent passage of vessels, EEZ or in certain situations a part of high seas for free navigation. The example of later case may be if a state does not claim EEZ, the high seas would start from the outer limit of the territorial sea.
926 UNCLOS, Article 8(1). 927 Ibid., Article 2(1). 928 An area near the shore where vessels are intended to anchor in a position of safety; often situated in a shallow indentation of the coast. Source: UN, Baselines: An Examination, (1989), 60. 929 Saudi Arabia v. Arabian American Oil Company (Aramco) (1958), 27 ILR 117 61 at p.212. 930 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, p. 14, Para 213.
215
In internal waters, coastal state may invoke and assert many jurisdictions that cannot be done otherwise. Unlike other zones, internal waters do not have any specified maximum limit. All the vessels entering into internal waters throw themselves on the fullest jurisdiction of coastal state, be it administrative, civil or criminal.931 In practice of states, vessels in distress or force majeure are permitted in the ports to preserve lives932 or where the waters enclosed had been customarily used for passage of ships for traversing.933 The unjustified straight baselines appropriate sea area which otherwise may fall in some other zone and consequently free from many strict jurisdictional abridgements and navigational restrictions.
Territorial Sea
One of the most controversial issues between the states during negotiation of UNCLOS I, II and III, had been the outer extent of the territorial sea. Due to non- agreed breadth of this zone, UNCLOS-I and II had not been a success. US concept of sovereignty over the territorial waters adjacent to the coast is over two centuries old.934 It evolved from ‗canon shot doctrine‘ to 3NM limit. According to data available, by June 1971 coastal states had a variety of claims for the territorial sea. Nonetheless, 12NM territorial sea claims were predominant.935 The detail of various claims by 1960, 1971 and 2012 are mentioned in Graphs-4 through 6.
931 UNCLOS, Article 2. 932 Source: http://www.imo.org/OurWork/Safety/Navigation/Pages/PlacesOfRefuge.aspx (accessed on 31 December 2014). 933 UNCLOS, Article 8(2). 934 US Neutrality Act of 1794, Article 6. 935 Adapted from Richard B. Lillich and John Norton Moore ed., Role of International Law and an Evolving Ocean Law (Vol-I), Vol-61, (New Port, Rhode Island: Naval War College Press, 1980), Appendix-I, 230-231. Hereinafter “Lillich and Moore, Role of International Law (Vol-I), (1980)”.
216
Graph-4936 Graph-5937
Territorial Sea Claims by 1971 Territorial Sea Claims by 1960
Graph-6938
Territorial Sea Claims till 2012
936 Major Thomas E. Behuniak (Fall 1978), "The Seizure and Recovery of the S.S. Mayaguez: Legal Analysis of United States Claims, Part 1", Military Law Review. Department of the Army (1982), 120. Also in UN, Laws and Regulations on the Regime of the Territorial Sea, (New York: 1957), Doc. ST/LEG/SER.B/6. 937 Adapted from Lillich and Moore, Role of International Law (Vol-I), (1980), Appendix-I, 230-231. Also in UN, Laws and Regulations on the Regime of the Territorial Sea, (New York: 1957), Doc. ST/LEG/SER.B/6. 938 Adapted from Website www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/table_summary_of_claims.pdf (accessed on 21 January 2015). Also in UN, Laws and Regulations on the Regime of the Territorial Sea, (New York: 1957), Doc. ST/LEG/SER.B/6.
217 By the time of UNCLOS-III, state practice to claim twelve miles territorial sea had crystallized939 and ultimately agreed as 12 NM940 in the UNCLOS. Due to sovereignty character of this zone, straight baselines have specific impacts on it. The limit of 12NM is to be measured from the baseline.941
Territorial sea does not have sovereignty like internal waters but contains sovereignty to great extent without prejudice to the right of innocent passage which is subject to suspension942 under certain conditions. The primary focus of this zone is; ‗[…..] the peace, good order or security of the coastal State‘.943 The right to passage is further burdened with a long non-exhaustive list of restrictions,944 the violation of anyone or more of them make the passage non- innocent. Article 21 provides other miscellaneous limitations945 that a coastal state may impose on the other states regarding its territorial sea regime. The coastal state, in its territorial sea, is vested with the powers to establish and assert traffic separation schemes and sea lanes for the navigational safety.946 The implementation is particularly strict for some specific categories of ships like; nuclear powered; carrying nuclear materials; noxious substances; or inherently dangerous materials.947
The excessive straight baselines may appropriate an area of contiguous zone, EEZ or high seas as territorial sea which to great extent has the attributes of internal waters. The length of this zone was extended to 12NM as a result of a package or compromise to balance the interests of states having various concerns. More realistically the hot debates were upon the broadening of this zone by the developing states on the premise of security and economic interests. Contrarily major maritime states had interests in more sea for free navigation and other
939 Churchill and Lowe, LOS, (1999), 79. 940 UNCLOS, Article 3. 941 Ibid. 942 Ibid., Article 25(3). 943 Ibid., Article 19(1). 944 Ibid., Article 19(2). 945 Ibid., Article 21(1). 946 UNCLOS, Article 22(1). 947 Ibid., Article 22(2).
218 activities. More sea is appropriated on account of baselines applied unilaterally and devoid of generally recognized international principles. It may impact the community of states at large and may lead to conflicts. The territorial seas of the world cover approx. 22.4 million km2 areas of the oceans.948
The laws of coastal state extend to territorial sea not as authoritative as in the internal waters and not as less as in the EEZ or Continental Shelf. The right of innocent passage does exist in this zone for all the categories of vessels irrespective of their nationality subject to a number of internationally recognized restrictions.949 The coastal state reserves the right to suspend traversing of vessel for innocent passage if it considers such passage against its security interests.950 UNCLOS bestows the jurisdictional powers on coastal states with the exhortation of giving ‗due regard to the interests of navigation‘.
Apart from a number of civil jurisdictions, if a foreign vessel engages in activities whose consequences extend to the coastal state; disturbs the peace of state or good order of territorial sea, the coastal state may take criminal jurisdiction on such vessel. The coastal state may also invoke criminal powers if the navigating vessel requests for assistance; or required so for the suppressing of illicit drug trafficking.951 The warships, like other vessels, are entitled to free traversing through territorial sea of other states for innocent passage. The submarine, however, are required to surface while exercising passage right. This zone like internal waters does not provide rights of over-flight.
The coastal state is not empowered to arrest the warships including submarines and vessels used for government purposes for violations in the territorial sea. Some scholars like Evan are of the view that use of some force to ensure compliance is implicit.952 The permission to use force may not be a fair idea
948 Schoolmeester and Baker, Continental Shelf, (2011), 28. 949 UNCLOS, Article 19. 950 Ibid., Article 25(3). 951 UNCLOS, Article 27. 952 Malcolm D. Evan ed., International Law, 4th Ed., (New York: Oxford University Press, 2014), 659.
219 because in certain peculiar situations it may constitute a trigger of war or at least emerge into some untoward incident. This is based on the generally accepted norm that warships and government owned ships are considered extension of the flag state‘s sovereignty. Since arrest of warships would require warships of a coastal state, it may result into a conflict or an untoward incident.
The status of warships at sea is considered equal immaterial of their flag state either big or small. It is a cardinal principle recognized internationally that warships of one state cannot exercise jurisdiction over warships of other states, just like sovereigns cannot exercise powers over sovereigns.953 If this category of vessel violates the regulations of coastal state, such state may ask violating ship or ships to leave the territorial sea.954 Some states while recognizing the right of innocent passage for the warships also place restriction of prior information, notification or permission for such passage of warships. Table-3 presents different stances of states in this regard.955
953Jurisdictional Immunities of the State (Germany v. Italy : Greece intervening), Judgment, ICJ Reports 2012, p. 99, Separate Opinion Of Judge Keit, 161. Also The Schooner Exchange V. McFaddon & Others (11 U.S. 116), para 105 and UN General Assembly Resolution 2625 (XXV). 954 UNCLOS, Article 30. 955 Adapted from Sources: DOALOS, Declarations and Statement, available at http://www.un.org.depts/los/convention_agreements/convention_declarations.htm (accessed on 23 January 2015). Also in Stuart Kaye, Freedom of Navigation in the Indo-Pacific Region, Papers in Australian Maritime Affairs No. 22, (Australia: Commonwealth, 2008), 8-12. Also in James Kraska, Maritime Power and the Law of the Sea, (New York: Oxford University Press, 2011), 431-441. Also in US, US Responses to Excessive National Maritime Claims, LIS No. 112, (9 March 1992), 62. Also in Roach and Smith, Excessive Maritime Claims, (2012), 250-262.
220 Table-3
It is immaterial what kind of restrictions has been imposed by the coastal states; the crucial element is sensitivity over the passage of warships. Probably they feel protected by placing some impediments in the form of these conditions and keeping discretion in their hands. The major maritime nations unlike coastal states want an unhindered and unrestricted free traversing in the territorial sea. The controversies are visible as divulged from point of views of major maritime nations and coastal states. Due to controversial straight baselines the sea which is
221 claimed as territorial sea by the coastal state may be contiguous zone or EEZ or high seas in the eye of other states. The major maritime nations may particularly claim free sea and aerial navigation without any condition. The sea falling in EEZ or high seas may have absolute freedom of navigation (hereafter FON), beyond territorial sea compulsions ensuring due regard for coastal states‘ rights and duties.956 By claiming 12NM territorial sea by the coastal states, over 100 straits including strategically important straits like; Hormuz, Malacca, Gibraltar, Bab El- Mandeb have come into territorial sea regime.957
Unfounded and ultra vires baselines stretch the territorial sea to seaward, similarly FON liberties in EEZ or high seas are pushed further. The seas where vessel can have FON rights are bound by the restrictions of innocent passage rights. The foreign vessels are subdued to right of inspections of certain vessels due to territorial sea regime. If the sea is part of EEZ or Continental Shelf, the vessels are exempted from such compulsions. The right of pure MSR of international community is hampered and right of laying submarine cables drifts seaward.
Piracy is a universal crime committed either in EEZ or on high seas. Appropriation of EEZ or high seas into territorial limits on account of straight baselines brings piracy into definition of armed robbery. Armed robbery is generally considered less severe crime and warrants less punishment compromising on the discipline and tranquillity of the sea.
Contiguous Zone
The contiguous zone is distinctive from territorial sea although it is adjacent to it and that is why called contiguous. In legal terms contiguous zone may extend upto 24NM958 from the baseline or for practical purposes 12NM from exterior limit of territorial sea. The contiguous zones of the countries cover approx. 6.6
956 UNCLOS, Article 58(3). 957 UN DOALOS, Historical Perspective. 958 UNCLOS, Article 33.
222 million km2 of the world oceans.959 This zone is unique in a sense that it carries three fold of jurisdictions which are; original, preventive and enforcement. There is a misnomer that contiguous zone has no legislative jurisdiction and has only enforcement jurisdiction.
UNCLOS provides a specific status to the historical and archaeological objects lying on the seabed of contiguous zone.960 Coastal states are competent for making enactments for outlawing the removal of archaeological and historical objects,961 whereas Article 33 allows adopting measures for redressing violations through enforcement. Careful reading of Articles 33 and 303(2) suggests that contiguous zone is legislative as well as implementation zone for archaeological and historical heritage on the bed of contiguous zone. Impliedly, it is enforcement zone for the archaeological heritage in territorial sea too. If it were meant to control the trafficking or removal of archaeological objects for the violations in internal waters and territorial sea only, so where is the original legislation for these objects on the seabed of contiguous zone. It otherwise seems logical because states have sovereignty over surface, subsurface and air space of territorial sea. These objects are generally considered exclusive property of the coastal state.962 The removal of these objects, without concerned state‘s permission, would amount to violation of archaeological heritage laws.
The coastal state sovereignty, to the extent of archaeological and historical heritage, extends to 24NM. This provision has its background in earlier work of UNESCO providing a detailed definition of cultural heritage;963 however, it was introduced in the UNCLOS deliberately. The preventive jurisdiction rests in policing for violations committed on landmass, internal waters or in territorial sea regarding, fiscal, immigration, sanitation, and customs regulations of a state. It includes; visit, boarding, search and even refusal to the foreign vessels from their
959 Schoolmeester and Baker, Continental Shelf, (2011), 28. 960 UNCLOS, Article 303. 961 Ibid. 962 Ibid., Article 303(2). 963 The 1972 UNESCO Convention for the Protection of the World Cultural and Natural Heritage, Article 1.
223 entry into the territorial sea. Policing the maritime zones is not as simple as on the land. The boundaries in the sea are through imaginary lines not easily distinguishable. It may be easy for the violators to commit a crime and just slip in the other zone to avoid arrest and prosecution under the national laws of coastal state. Contiguous zone provides latitude to the coastal state for enforcement of their laws for four offences enumerated above by resorting to doctrine of hot pursuit964 from this zone.
On one hand this zone cares for the interests of coastal state, conversely if measured from an excessive straight baseline may push contiguous zone further seaward. This creeping jurisdiction adversely impacts on many rights of other states. The contiguous zone is enforcement zone for other sovereignty zones as discussed above but not for violations of its own. The only exception in this regard is the historical or archaeological objects lying on the seabed of contiguous zone. Imperfect delineated baselines may occupy the area of sea pushing every zone to seaward, including contiguous zone, to hamper the interests of the comity of states. The area for freedom of sea and air navigation which has always remained primary concern of major maritime nations moves seaward. Its jurisdictional enforcement depends largely on the nature of baseline system selected by the states.
This is the only zone whose characteristics change with the choice of other zones. If a state claims EEZ it possesses all the features of EEZ with the addition of its preventive, policing or enforcement aspects. In different cases, ICJ decided that even a state does not claim continental shelf, by default it becomes part of the coastal state being ipso facto, ipso jure and ab initio zone.965 Under TSC contiguous zone was a zone of high seas.966 Contiguous zone in addition to its own features bears either residual EEZ or high seas parameters. If a coastal state
964 UNCLOS, Article 111. 965 Continental Shelf (Libyan Arab Jamahiriya / Malta), Judgment, ICJ Reports 1985, p. 13, Para 27 at 30. Also in The North Sea Continental Shelf, Judgment, ICJ Reports 1969, p. 3, Para 19 at 22. Also in Aegean Sea Continental Shelf, Judgment, ICJ Reports 1978, p. 3, para 86 at 36. 966 TSC, Article 24.
224 does not claim EEZ, which is rare, the high seas would start from the outer end of territorial sea. Irrespective of the dependency of this zone on other zones, it is a fact that illicit straight baselines always push the jurisdiction seaward with appropriation and interference in the rights of international community in multifaceted ways.
The extension of this zone seaward does not only gain more expanses but also stretches the legislations, cognizance, jurisdictions and enforcements. Flag state vessels and crew of various nationalities may come under undue enforcements, where they in fact may have free navigation zone in the form of EEZ or high seas. Vessels are unnecessarily subjected to archaeological object regime due to seaward stretch of zone on account of exaggerated baselines. If the baselines are drawn correctly, the areas encroached by the states unjustifiably by this zone could either be EEZ, continental shelf or high seas. In this manner the international shipping and so the crew on-board ships as well as passengers become subject to unnecessary jurisdictions of coastal states. The rights of international community for laying submarine cables and pipelines are restricted too leading to controversies between the states.
High Seas
High seas are twilight of coastal state exclusive and international community inclusive rights. A high sea has the distinction of bifurcating the coastal state jurisdictions and freedoms available to the other states. This is the only zone where no coastal state can have independent legislative jurisdiction. The only exceptions for coastal state jurisdiction at high seas are; universal crime like piracy967 and right of intervention968 in cases of pollution damage threat of imminent nature to a state‘s coastline or coastal interests. It can be said that ‗high seas‘ is opposite to the ‗internal waters‘. In Internal waters a coastal state has fullest sovereignty and in high seas all other states have full freedom.
967 UNCLOS, Article 101 968 1969 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, Article 1.
225
Being common club of all the states, the high seas are to be reserved for peaceful purpose.969 High Seas occupy 200.4 million km2 (approx.) areas of the world oceans.970 It amounts to over 60 percent of the oceans seaward from the outer limits of world EEZ claims.971 Traditionally the area not in the territorial limits of a state was high seas. HSC defines the high seas as; ‗all part of the sea not included in the territorial sea or in the internal waters of state‘.972 This definition of high seas sounded well when distinction was only between territorial sovereignty and freedom of seas. The position changed with the introduction of a new concept of sovereign rights in the form of EEZ and archipelagic regime. EEZ has pushed the high seas seaward and now high seas start at the outer limit of this zone.973 During UNCLOS-III, the concept of high seas had a modification;
―[…..] all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State‖.974
High seas are not subject to appropriation by any state. UNCLOS reiterates that high seas are free for all states irrespective of their status as coastal or landlocked‘975 on the principle of equality.976 High seas being Res communes to all the states, UNCLOS exhorts the states to exercise due regard to the interests of one another and activities in the Area.977 Since maritime zones are measured from baselines and if straight lines are chosen where normal baselines should have been applied, it extends the limits of other zones seaward. The extension of other maritime zones ultimately means reduction in the high seas. The imperfect baselines, therefore, have particularly great impact on high seas regimes.
969 UNCLOS, Article 88. 970 Schoolmeester and Baker, Continental Shelf, (2011), 28. 971 Source: http://www.oceanhealthindex.org/News/2014_highseas_assessment (accessed on 23 March 2015). 972 1958 High Sea Convention, Article 1. 973 UNCLOS, Article 57. 974 UNCLOS, Article 86. 975 Ibid., Article 87(1). 976 Ibid., Preamble to 87 through 90. 977 Ibid., Article 87(2).
226 UNCLOS enumerates a number of freedoms enjoyed by the states irrespective of their location, size whether coastal or landlocked. These freedoms, inter alia, include; navigation, over-flight, laying submarine cables and pipelines, construction of artificial islands and installations, fishing, and MSR.978 This is by no means an exhaustive or comprehensive list as many rights may accrue in future with the advancement of technology and necessities of human being. These freedoms in the high seas are not totally unfettered to maintain peace979 and peaceful coexistence of states.
Amongst all the freedoms, the navigation carries the foremost importance for commercial shipping and for world navies. It is understood that excessive straight baselines in all probabilities lead to creeping jurisdiction in the sea. The decrease in high seas means reduction in the ‗Area‘ which consequently affects directly or indirectly each and every country and people in the world. If the baselines are not drawn reasonably and justifiably, the sea covered as territorial sea, contiguous zone or EEZ may actually be high seas where whole international community has common interests. All the freedoms in the high seas move further away where either these activities are difficult to conduct or futile for desired results.
The coastal states‘ jurisdiction on law enforcement drifts further seawards. The high seas liberty of actions by other states is appropriated in a variety of coastal state power and jurisdictions. This in a way is coastal states‘ confiscation of flag state rights and privileges. No other zone has greater impacts of excessive straight baseline delineation than the high seas. The states are deprived of their right of laying submarine cables and pipelines due to coastal state activities in non-coastal jurisdiction area. The right of other states to construct artificial islands and installations on the high seas move away, enhancing the difficulties and expenditures. Similarly the right of fishing of all states in the high seas is squeezed due to increased coastal maritime zones because of wrong and excessive baselines. The right of free MSR available in the high seas is restricted due to
978 UNCLOS, Article 87(1). 979 Ibid., Article 87(2).
227 coastal state control. Those areas of sea that has to be free for research are included in the sovereignty or sovereign rights zones and subject to coastal state discretion of permission.
The ocean floor and subsoil of the high seas are governed by the regime of ‗Area‘980 whose resources are the mankind‘s common heritage. The ‗Area‘ does not have legal effects on superjacent waters and air space above this sea. The resources of Area are jointly owned by the human beings of the globe. Seaward extension of coastal state jurisdiction consequently causes appropriation of the resources of Area leading to potential conflict. The usurpation of resources in this fashion has specific impacts on common heritage right of other states including landlocked and geographically disadvantaged states.
Figure-11 reflects about the gradual decrease in coastal state jurisdiction from land to seaward whereas from high seas to landward the flag state gradually travels to decreasing freedoms and increasing coastal state restrictions and jurisdictions. The sea cycle suggests that various zones strike a check and balance between coastal and flag state rights and obligations. The gobbling of excessive sea on the basis of wrongly constructed straight baselines, no doubt, disturbs the balance created under the UNCLOS.
980 UNCLOS, Article 136.
228 Figure-11 (Based on author‘s own idea)
Impact of Straight Baselines on Continental Shelf
The 1945 Truman Proclamation981 concerning continental shelf can be truly called the thrusting force for claims on the pattern of proclamation. Before the Second World War there was little interest in the subterranean natural resources. Isolated regional claims on this concept had been made by various states in the past. The delimitation of maritime boundaries between the states had been rare.982 In 1942 UK and Venezuela entered into a treaty for control of submarine area in the Gulf of Paria before the two US proclamations.983 In the Persian Gulf some Arab sheikhdoms like; Abu Dhabi, Bahrain, Kuwait, Qatar, issued similar proclamations under the auspices of UK.984
981 US Presidential Proclamation No. 2667, Policy of the United States With Respect to the Natural Resources of the Subsoil of the Sea Bed and the Continental Shelf of 28 September 1945. 982 Charney and Alexander, Maritime Boundaries, Vol-I, (1993), xxiii. 983 205 LNTS 121. 984 Jennings and Watts, Oppenheim’s International Law, Vol-I, (1992), 768.
229
The ILC did extensive work on the continental shelf provisions. By UNCLOS-I, the geometric progression on the issue had matured continental shelf concept as per aspirations of coastal states. The impetus gained by the issue led to an independent instrument in the form of 1958 Geneva Convention on Continental Shelf (hereafter CSC). CSC received detailed discussions from states before it was concluded.985
Controversies on the definition of continental shelf remained a serious issue as only geographic definition was not considered satisfactory.986 The criteria for limitation of this zone being already controversial generated tough debates at UNCLOS-III. This issue was tackled from legal, geological and geo- morphological angles for its limitation and determination. Continental shelf has a singular significance that a state does not need to claim his zone.987 By legal definition, every coastal state has ipso facto and ipso jure 200NM of Continental Shelf provided limits of Sea permit. It may be clarified that this zone is available as legal right but its delimitation is to be done by the concerned state. The ICJ in Libya/Malta case pronounced that there can be a continental shelf without EEZ but there can be no EEZ without continental shelf.988 It means that the day a coastal state is recognized as an independent entity at international arena, she is entitled to continental shelf. The ICJ in the Continental Shelf cases declared Article 2(1) and (2) of CSC a customary norm; ―the rights of the coastal State in respect of the area of the continental shelf [.....] exists ipso facto and ab-initio [.....]‖.989
The sovereign authority to explore and exploit natural resources of continental
985 UN Conference on the Law of the Sea, Official Record, Vol -VI, Fourth Committee (Continental Shelf), Summary Records of Meetings and Annexes, (Geneva: 24 February - 27 April 1958). 986 ILC Yearbook 1950, Vol-I, para 20a at 228. 987 CSC, Article 2(1) and (3). 988 Continental Shelf (Libyan Arab Jamahiriya / Malta), Judgment, ICJ Reports 1985, p. 13, para 34 at 33. 989 North Sea Continental Shelf, Judgment, ICJ Reports 1969, p. 3, para 19.
230 shelf has been vested exclusively990 in coastal states.991 The natural resources992 of subsoil and seabed consisting of non-living resources and living organism of sedentary nature,993 belong to the coastal state. The continental shelf has been defined in the UNCLOS as;
―The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.‖994
Over 70 percent of the earth comprises water; the remaining 30 percent consists of continents. Apparently coastlines mark the distribution between land and the sea but the continents do not end at the coasts. The extension of these submerged edges of continents continues underwater till lapping up of ocean on the shores known as continental margins.995 During the negotiation of UNCLOS many delegates particularly Japan proposed the maximum limit of 200NM for the continental shelf.996 The coastal states with broad margin shelf insisted on extended continental shelf.997 The deadlock was broken between the extremes by fixing limits to 350NM and on the condition of sharing the revenue of 150NM extended continental shelf with the international community.998
990 UNCLOS, Article 77(2). 991 Ibid., Article 77(1). 992 CSC, Article 2(4) and UNCLOS, Article 77(4). 993 Sedentary species are those which at the harvestable stage either are immobile on or under the seabed or are unable to move except in constant physical contact with it. Source: CSC, Article 2(4) and UNCLOS, Article 77(4). 994 UNCLOS, Article 76(1). 995 Pam Walker and Elaine Wood, The Continental Shelf(Life in the Sea), (New York: Facts On File, Inc., 2005), 1. 996 Extract from the Official Records of the Third United Nations Conference on the Law of the Sea, Volume III (Documents of the Conference, First and Second Sessions), Document:- A/CONF.62/C.2/L.31/Rev.1, 211. 997 ILA, Report on Article 82 of the 1982 UN Convention on Law of the Sea (UNCLOS), Rio De Janeiro Conference (2008), para 1.3 at 2. 998 Frederick E. Snyder and Surakiart Sathirathai Ed., Third World Attitudes Towards International Law, (Netherland: Martinus Nijhoff Publishers, 1987), 723. Also in O’Connell, LOS, Vol-I, (1982), 507.
231 Till the conclusion of CSC the technology was not much advanced. Therefore, to determine the seaward extent of the continental shelf, CSC provided the criteria; 200 meters isobaths depth and the test of exploitability.999 The exploitability test was vague in nature as with the advancement in technology, the limit could move seaward indefinitely. It was also ambiguous as to whether the exploitability means the capacity of the coastal state individually or of any developed state or of all other states or of any other state on behalf of the coastal state. The subterranean resources could practically be at the disposal of some developed countries with no limit to appropriation of resources. The doctrine of common heritage of mankind may be called the reaction to this approach to seabed resources.
By the start of negotiation on UNCLOS-III, dissatisfaction on the continental shelf criteria provided in CSC had become evident. The major chunk of discussions was dedicated on settling various issues relevant to this zone. The long tiring efforts of delegates from large number of countries showed their willingness on definition and outer limits in the form of Article 76 of UNCLOS. At the end of UNCLOS-III negotiations, continental shelf regime emerged having most comprehensive set of rules. It provides continental shelf definition, outer limits, delimitation, technical requirements like seismic surveys, submission of claims pertaining to its extension, formation of an independent commission to accept claims etc.
Physically, the seabed that is jointly called continental margin can be divided into three main portions which are;1000 continental shelf (proper1001), continental slope and continental rise as depicted in Figure-12. Some writers include a fourth section of seabed as Abyssal plain or deep seabed.1002
999 Article 1(a) of CSC. 1000 O’Brien, International Law, (2001), 436. Also Churchill and Lowe, LOS, (1999), 141. Also in Walker and Wood, The Continental Shelf (2005), 4. 1001 Continental Shelf (Libyan Arab Jamahiriya / Malta), Judgment, I. C.J. Reports 1985, p. 13, para 58 at 45. 1002 Walker and Wood, The Continental Shelf (2005), 4. Also in Lillich and Moore, Role of International Law (Vol-I), (1980), 389.
232 Figure-12 Continental Margin
Geologically "continental shelf" is a part between shoreline and shelf break. In cases where continental slope is not noticeable, it is between shoreline and the point where superjacent water has a depth around 100 to 200 metres. According to UNCLOS, continental shelf is submerged prolongation of coastal state‘s land territory extending beyond territorial sea. The continental margin comprises seabed and subsoil of shelf, slope and rise. An abyssal is deep ocean floor under the seawater at a depth ranging between 3000 and 6000 m.
Article 76 offers three criteria to determine the extent of outer limit of continental shelf. The artificial or legal criterion does not require any test except the existence of a coastal state. Such a state has an inherent right of 200NM of continental shelf in legal terms even though the continental margin may not extend upto 200NM. The only restriction may be due to non-availability of the sufficient sea for extending to 200NM. This is a lawyer‘s continental shelf which is quite different from the geographer‘s calculation.
Geographers provide two methods for extension of continental shelf. The geographical test originates from the criteria laid down in Article 76(4)(a)(i) and (ii). This formula was proposed by Ireland and is also known as Irish or Gardiner
233 formula1003 which is contained in UNCLOS Article 76(4)(a)(i).1004 The second formula is called Hedberg formula1005 devised in the spirit of UNCLOS Article 76(4)(a)(ii).1006 UNCLOS Article 76(4)(b) clarifies that; ―In the absence of evidence to the contrary, the foot of the continental slope shall be determined as the point of maximum change in the gradient at its base.‖
In either of the formulae the maximum distance of the lines shall not be in access of 350NM from established baselines. As an alternate it shall not be in excess of 100NM measured from 2,500 meters isobaths1007 in the light of Article 76(5) of UNCLOS. The geographical tests provided in the UNCLOS for delineation of continental shelf comparing CSC stipulations are clearer. These criteria as well are not absolutely precise, free from differences or uncertainties. The matter being technical may end up in dispute over the identification and location of continental slope or bathymetric evaluation of 2,500 meters isobaths.
The delineation of extended continental shelf is not as easy as it may appear. Examination of UNCLOS provisions concerning continental shelf furnish a fair idea, which necessitates the coastal states to take a number of actions before she can finally extend this zone. Firstly, the state is to decide whether she wants only a legal or a geographical continental shelf. Secondly, in case of geographical choice, there is a requirement of initial surveys and data collection, to fulfil the geographic requisites. Thirdly, delineation of outer limits of shelf which may in no case cross the extent of 350NM1008 and notify1009 it within ten years of the
1003 Tanaka, International LOS, (2012), Para 4.3 at 135 1004 Measuring the outer limit of continental margin by a line delineated in accordance with paragraph 7 (of Article 76) by reference to the outermost fixed points at each of which the thickness of sedimentary rocks is at least 1 per cent of the shortest distance from such point to the foot of the continental slope.. 1005 Tanaka, International LOS, (2012), Para 4.3 at 135 1006 Measuring the outer limit of continental margin by a line delineated in accordance with paragraph 7 by reference to fixed points not more than 60 nautical miles from the foot of the continental slope. 1007 A line representing horizontal contour of the sea-bed at a given depth. Source: UN, Baselines: An Examination, (1989), 571. 1008 UNCLOS, Article 76(6). 1009 Ibid., Article 76(9).
234 ratification or accession of UNCLOS. Fourthly, submission of claim based on scientific and geographical data in support of the claim. It is subject to scrutiny of sub-commission of Commission on the Limits of Continental Shelf (CLCS) consisting of technical experts. Fifthly; submission of claim to the CLCS is subject to final endorsement through voting procedure by two-third majority.1010 Sixthly, revise or submit1011 a fresh claim in the light of CLCS recommendations, if required. If the data does not support the extension of continental shelf, the CLCS shall convey the same to the coastal state.1012 Seventhly, depositing of oceanographic data, charts, other relevant information etc. with the UN Secretary General for due publicity.1013
ILC had envisioned before the CSC that continental shelf was likely to generate conflicts over exploitation of resources. It was the time when tapping of seabed reservoirs had not gained much importance in the life of nations. ILC accordingly proposed an article in its draft for settlement of disputes regarding this zone but it received opposition from some ILC members on various reasons. The article reads as; ―Any dispute which may arise between states concerning the interpretation or application of these articles should be submitted to arbitration at the request of any of the parties‖.1014
During UNCLOS negotiations, the need was felt to introduce some independent or impartial mechanism to scrutinize the submission of claims by states for extending outer limits of continental shelf. The disputes were perceived to arise on extension of shelf. As a result the constitution of CLCS is a striking achievement with a novel way of working. The technical evaluations of the claims are carried out by a sub-commission of CLCS.
The type of baseline adopted by coastal state has great impact on the continental shelf when measured from baseline whether it is delineated on account of legal or
1010 UNCLOS, Article 6(2) Annex II. 1011 Ibid., Article 8 Annex II. 1012 Ibid., Article 76 (8) and article 7 of Annex II. 1013 Ibid., Article 76(10). 1014 ILC Yearbook 1953, Vol-II, 213.
235 geographical criterion. Certainly the impact is more crucial when it is measured from the straight baselines. Constructions of controversial straight baselines which mostly give rise to undue excessive claims are prone to more controversies.
Legal Status of Continental Shelf
Before coming over to the impact of straight baselines on continental shelf, a cursory glance is put its genesis and legal status. The legal limit of continental is 200NM and practically 188NM as territorial sea may extend to 12NM from the baseline. Continental shelf and territorial sea have different genesis as territorial sea is sovereignty zone in terms of superjacent waters, subterranean resources or airspace above it. Contrarily continental shelf has sovereign rights1015 over natural resources of the seabed, sub-soil and non-living organisms.
Despite the coexistence of EEZ and legal continental shelf both have dissimilarities and a few commonalities too. Continental shelf has the distinction that its resources cannot be explored and exploited by other states although not claimed by the coastal state.1016 This is not the case with other zones where the state needs to claim and declare them. The ICJ in Malta/Libya case commented that continental shelf and EEZ under the UNCLOS are interlinked in the modern law but EEZ does not absorb the concept of continental shelf.1017
Continental shelf bears the distinction of its extendibility beyond 200NM on the basis of geographical or geomorphological criteria unlike other zones. Different principles apply and different rights and obligations are available on two categories of continental shelves; legal and geographical. Legal status of continental shelf beyond 200NM seaward is quite different in many respects. The superjacent waters above continental shelf are high seas whether within 200NM or in the extended area. However superjacent waters within 200NM do not have high seas status completely due to the presence of EEZ if claimed by the state.
1015 UNCLOS, Article 77(1). 1016 Ibid., Article 77(3). 1017 Continental Shelf (Libyan Arab Jamahiriya / Malta), Judgment, ICJ Reports 1985, p. 13, para 33 at 33.
236
The status of superjacent waters over extended shelf is completely high seas in theoretical terms. Practically, the right of coastal state to construct artificial islands, installations and structures impede the high seas freedoms to great extent. The extended sovereign rights of coastal state take with them the right of hot pursuit for the violations of rules and regulations relating to this regime. The hot pursuit1018 provision does not expressly ordain about the same rights in the extended continental shelf as are available in the continental shelf. Nevertheless, it seems illogical not to grant the hot pursuit rights to the coastal state for violation of activities in the extended shelf.
The coastal state has sovereign rights for exploring or exploiting natural living and non-living sedentary species in the extended shelf.1019 The state has the exclusive right to exploit the resources but is to share the percentage of profit with the international community through ISA.
The straight baseline system is a fulcrum of the coastal state maritime zone regimes landward and seaward. Almost every dimension of zones is affected, particularly of continental shelf by the status of straight baselines. The situation becomes more complex and crucial regarding consideration of claims to the extended continental shelf. This is with specific relation to the determination of distance measurements to 200NM and 350NM limits from controversial straight baselines. It is a matter of great pertinence that CLCS is vested with the authority to review the submission of coastal state claim for extension of continental shelf. The commission is normally not entitled to give reservations on the delineation of baselines.1020 As an exception, commission can request coastal state for geodetic data regarding delineation of baseline in cases of; positive test of appurtenance and if there are constraints in a submission for employment of 350NM limit.1021 Some salient areas of continental shelf having multifaceted impacts of such straight lines are discussed.
1018 UNCLOS, Article 111(2). 1019 Ibid., Article 77(4). 1020 Scientific and Technical Guidelines of CLCS, Article 3.3.1 of. 1021 Ibid., Article 3.3.2.
237 Navigation
The superjacent waters above the continental shelf do not carry any sovereign rights with them. They are free for navigation to all types of vessels irrespective of their nationality. Straight baselines even wrongly drawn have no impact on the navigational rights of vessels of other states. The undue expansion of shelf seaward on account of improper straight baselines may hamper the free navigational rights of flag states. Exclusivity of coastal state to construct, use, operate, authorize and regulate the construction of artificial islands; installations and structures may impede the right of navigation and other uses granted by the UNCLOS.1022 This interference may be highly significant for military or rescue operations where low flying is required. The excessive seaward advancement of exclusive jurisdiction which may practically be high seas may have serious implications. The coastal state continental shelf claims may be challenged by other states being high seas which are free for navigation without any impediment.
Non-living Resources and Living Organisms
The rights of exploration and exploitation of non-living resources in the continental shelf and EEZ mirror to each other with absolutely no difference. Rights with regard to living resources are not the same. The continental shelf when overlapping with EEZ, every kind of living resources are the sovereign rights of the state including living organisms. Dispute may arise between other states and coastal state over sedentary species and free fishing in the extended zone because the term in itself has no clear bifurcation. The conflicts may be compounded over excessive claims on the continental shelf and extended area due to clash between states on the legality of straight baselines.
Depletion or diminishing of land resources due to rise in population and construction activities is a reality. States are banking on sea resources particularly the living resources. Data of fisheries exploitation from 1950 to 2010 of the
1022 UNCLOS, Article 78.
238 world catch in Graph-8 at page 255 shows an extraordinary increase in every decade which has the potential of conflicts on jurisdiction, control, regulations and limitation based on straight baselines. The unfounded baselines may increase the area of legal continental shelf thereby grabbing the high seas which is a free fishing zone for all the states.
At the same time competition and awareness about the non-living resources cannot be underestimated. During 1950 to 1960 US alone drilled 15,300 wells exploiting 4.5 billion barrels of oil.1023 The extended continental margin may advance seaward with restrictions of continental shelf extractions having effects on superjacent waters. The conflicts cannot be ruled out as happened in the past between Brazil and France1024 over lobster fishing (crawfish). Different countries have graded various species distinctively. UK and USA take crabs within the sedentary species but not the lobsters because they can swim.1025 The exclusive rights on non-living resources in the continental shelf may confront with the inclusive rights in the International Seabed Area (hereafter ‗Area‘).
Military Uses
Military matters between the states are always sensitive, may it be peace time, pre-hostilities or during war. A wide division has existed between the developing and the developed countries over military uses of the seabed. The developing countries depicted their security concerns and wanted establishment of a policy for preventing growth of new colonialism. The major powers had differences between themselves as well. US advocated for weapons of mass destruction free seabed and floor of deep oceans whereas USSR desired the seabed beyond the territorial sea only for peaceful purposes.1026
1023 United Nations, ECOSOC, Doc. E/4973 (New York: 26 April 1971), 12 quoted in Lillich and Moore, Role of International Law (Vol-I), (1980), 391. 1024 Issam Azzam, The Dispute between France and Brazil over Lobster Fishing in the Atlantic, 13 International and Comparative Law Quarterly 4 pp. 1453-1459 (1964), 1458. Also Harris, Cases and Materials, (2004), 483. 1025 Harris, Cases and Materials, (2004), 483. 1026 Lillich and Moore, Role of International Law (Vol-I), (1980), 409.
239 During personal interview with the author, on 12 January 2015, Vice Admiral (Retired) Mohammad Haroon, expressed that security concerns of the states were not as strong in the early twentieth century as are today. One of the reasons might be the advancement in military technology and modern means of intelligence gathering. The nuclear powered submarine brought revolution due to their long endurance, reach in depth and high speed. Underwater Vehicles (UUV) and other submersible vehicles may serve specific purpose with the traditional danger of mines.1027
The major maritime powers may install surveillance system on the seabed of continental shelf. Construction of underwater bases for military objectives and emplacement of special weapons at the seabed of continental shelf which may be activated at operator‘s will has turned into reality with the current technology.1028 These installations may themselves give rise to serious conflicts between the states whether permitted under the UNCLOS or not.
The problem may be multiplied, if differences turn up between a maritime power and a coastal state over continental shelf claim and its non-recognition on account of controversial straight baselines. For a coastal state it may be continental shelf whereas other states may treat it as high seas. The non-availability of correct data of coordinates and charts of apposite sizes are stumbling blocks in the determination of the exactness of straight baselines and maritime zones. The conflicts generate in all the maritime zones with more impact on continental shelf being boundary between exclusive (high seas/Area) and inclusive (sovereign) rights of states. The regulations of a zone based on controversial baseline boundaries may breed conflicts. The issue of US vessel Pueblo in 1968 for spying allegedly in the territorial sea of North Korea and declining by US government saying the vessel was in high seas had a serious conflict.1029 Location of the vessel at the time of alleged activities whether within territorial sea or high seas was one of the major controversies.
1027 V/Admiral (Retd) Mohammad Haroon (Pakistan Navy), is a Former Rector Bahria University, Islamabad, Pakistan. 1028 Lillich and Moore, Role of International Law (Vol-I), (1980), 419. 1029 Churchill and Lowe, LOS, (1999), 403-404.
240
Detail of military activities carried out on the ocean floor is neither normally publicized by the concerned states nor are considered requisite for this research. Sometimes such activities of the states are made public purposely to achieve some other objectives. One example may be the public discourse by the Assistant Secretary of US Navy Robert Frosch. On October 7, 1967, he enumerated some of the significant US interests on the seabed which included; Sea basing for strategic deterrence, warning and surveillance system, deploying of other units and to provide protection to the US nationals engaged in exploitation at sea.1030
In the end 1950‘s controversy erupted on the issue of oceans control for missiles and nuclear weapons testing in the sea. In this regard US claim for establishing ‗Danger Area‘ in the Pacific for the purpose of conducting nuclear weapons testing was most controversial. The US and Canada created Air Defence Identification Zones (ADIZ) for asserting their authority off their coasts.1031 Similarly UK established a danger zone in the western Pacific Ocean around Christmas Island.1032 In these situations the conflicted straight baselines being the bases for continental shelf may add fuel to the fire.
Apart from legality of military activities per se, the inner and outer limit of the continental shelf seabed may cause more problems in view of controversial straight baselines. A sea which is claimed as continental shelf by a coastal state may be contended as high seas or Area by the other states for military purposes.
Marine Scientific Research
Association of human beings with the sea is age old. The emphasis, however, remained on the food requirements and as medium of transportation. Man did photographing and mapping of the moon which situates 240,000 miles away; nevertheless, only 5% of the sea bottom that consists of over 70% of the earth has
1030 Lillich and Moore, Role of International Law (Vol-I), (1980), 497. 1031 Anand, Origin and Development of LOS, (1982), 171. 1032 Source: http://www.janeresture.com/christmas_bombs/ (accessed on 18 April 2015).
241 been explored.1033 In the recent past, marine scientific studies may be traced back to the expeditions of Challenger (1872-76).1034
The concept of ocean may be just a dream without the availability of scientific data. MSR can be called a systematized knowledge of the oceans. Marine research is specifically arduous and requires careful planning, sophistication of instruments and qualified expertise with large workforce. That is the reason that MSR has either been done by the developed countries or by the international organizations. The allocated budget for MSR in the developing countries is scarce.
The principles of MSR in EEZ apply, mutatis mutandi, to the continental shelf.1035 Therefore only the areas differing from EEZ shall be discussed. Legally and customarily the superjacent waters of the continental shelf are free for MSR. Establishment of EEZ has changed the position in practical terms as superjacent waters are not free for research which may serve number of purposes. The developing and under developed countries have many apprehensions concerning MSR from security point of view. Generally the coastal states look every MSR activity with suspicion due to different factors like over possessiveness of resources, lack of technological knowhow, threat to security, trust deficit etc. Conversely, the other states feel handicapped in freedom of conducting even pure MSR which may be beneficial for the mankind.
Straight baselines play a vital role for the delineation of continental shelf and to determine its outer limit on legal definition. The straight baselines if applied devoid of rules may extend the continental shelf seaward occupying the sea, which could otherwise be high seas free from coastal jurisdictions and restrictions. The research for the prediction of natural disasters which is meant for the benefit of whole mankind is either neglected or abandoned because of
1033 “Oceanology: Work Beneath the Waves”, Time Magazine, 19 January 1968, 68. 1034 George Stephen Ritchie, Challenger ‘The Life of a Survey Ship’, (New York / London: Abelard- Schuman Ltd, 1958), xxi. 1035 UNCLOS, Article 246.
242 boundary conflicts due to controversial straight baselines. Indian Ocean Tsunami in 2004 has increased the significance of seas from the aspect of disastrous impact on mankind.1036 Differences on application of straight baselines may have confrontation between coastal states and international organizations on conduct of research.1037
Unfortunately, the terms MSR, surveys or hydrographic surveys have not been defined in the UNCLOS providing a ground for divergent understandings. The use of hydrographic surveys is normally for peaceful purposes but may be used for military purposes too.1038 Added controversies may arise on the status of a zone being continental shelf or high seas on the basis of disputed straight baselines.
Laying Submarine Cables and Pipelines
UNCLOS affords similar rights of laying cables and pipelines in the continental shelf1039 as in EEZ.1040 It maintains a check and balance between rights and duties of other states and a coastal state. The rights bestowed on other states are not unfettered as coastal states have exclusive sovereign rights to explore and exploit the non-living resources and living organism of the seabed and subsoil. The delineation for the purpose of submarine cabling and pipelining is subjected to coastal states consent.1041 The coastal state is authorized to take reasonable measures to explore this zone and exploit its natural resources. Such state may take measures for preventing, reducing and controlling pollution from delineation of cables and pipelines.1042
The provision concerning tunnelling through the subsoil of the continental shelf, available in the CSC,1043 has been kept intact in the UNCLOS.1044 On the legal position of subsoil under the seabed even beyond three miles territorial waters,
1036 Ehlers and Lagoni, IMO Contribution, (2006), V. 1037 UNCLOS, Article 238. 1038 Tanaka, International LOS, (2012), 338. 1039 UNCLOS, Article 79(1). 1040 Ibid., Article 58(1). 1041 Ibid., Article 79(3). 1042 Ibid., Article 79(2). 1043 CSC, Article 7. 1044 UNCLOS, Article 85.
243 Colombos considered the driving of mines or building tunnels in the subsoil in the sea was littoral states‘ right and withholding recognition of this right was unreasonable. Nevertheless, he put the condition that such acts did not pose danger to the surface of sea.1045
As highlighted in the detailed discussion on cables and pipelines in the EEZ under chapter-11, the issue is not simple due to great dependence of states in other areas like telecommunication, oil and gas. Over 95% of communication is carried through underwater cables mostly comprising fibre-optic. Mostly, the cables pass from the seabed of continental shelf or EEZ. Cables are now being used for multi-purposes including military uses.1046 The uses and dependence on sea may aggravate conflicts between states.1047
The states may logger head with clash of interest between sovereign coastal state rights and other states‘ right to lay cables and pipelines. Straight baselines may perpetuate the disagreement in already grim situation and hard positions taken by coastal and other states. Other states may demand free high seas rights of cabling which the coastal state may claim as continental shelf bed. The people have become so much dependent on the information technology that if this medium is interrupted for a few hours it may cripple the world in many respects.
[ The on-going rift between Brazil, other Eastern European countries and US over monitoring of communication by US National Security Agency has shown up as a big issue.1048 The Brazilian government and European Union have agreed on laying of undersea communication cables to avoid surveillance of internet by the US.1049
1045 Colombos, LOS, (1967), 69. 1046 Protective Security Division, Characteristics and Common Vulnerabilities Infrastructure Category: Cable Landing Stations, Vol-I, (US Department of Homeland Security, 2004), 1, available at https://info.publicintelligence.net/DHS-UCL-CV.pdf (accessed on 21 May 2015). Also in Lionel Carter et al., Submarine Cables and the Oceans – Connecting the World, (2009) UNEP-WCMC Biodiversity Series No. 31, 8. Hereinafter “Carter, Submarine Cables and Oceans, (2009)”. 1047 Carter, Submarine Cables and Oceans, (2009), 28. 1048 Source: http://www.bbc.com/news/world-us-canada-23123964 (accessed on 6 June 2015). 1049 Source: http://en.mercopress.com/2014/02/24/brazil-and-eu-agree-to-lay-an-undersea- cable-to-avoid-us-internet-surveillance (accessed on 6 June 2015).
244 EEZ
Impact of straight baselines on EEZ is exclusively dealt in the next chapter due to peculiarity of interfacing of coastal state sovereign right jurisdiction with high seas freedoms of other states.
Conclusion
The pivotal role played by the baselines in delimiting maritime boundaries is an undeniable reality. The straight baselines being an exceptional method cause extraordinary challenges. If foundation for the construction of zones is faulty, this fallacy ripples to each and every zone. In majority of cases the controversial straight baselines enhance internal waters and other zones seaward unjustifiably. Such lines may have varying degree of impacts depending on the location of coastal state. Unjustified straight baselines impinge upon interests of every state and person on earth directly or indirectly as the extension of maritime zones and continental shelf ultimately appropriate high seas and ‗Area‘. The uses of the sea that were once available for a few states only and for limited purposes are no more tenable. The awareness about sea potentials, scientific knowledge of sea resources and depletion of land resources have compelled the states to compete. The conflicts between the states arise due to clash of interests, despite zones are measured from legitimate baselines. The claims on unfounded straight baselines play havoc on already constrained situation. The controversies between the states may have more impetus in the future on all the maritime zones due to arguable straight baselines.
The impacts of wrong straight baselines on continental shelf are specifically enormous due to interfacing nature of this zone with seas. It is the only zone which has the capacity to enhance seaward upto 350NM legitimately decreasing the res communes (high seas). In other words, continental shelf is the twilight of Mare Clausum and Mare Liberum placing the states again on the brink of conflicts. The Area and high seas are overlapping but do not represent sameness. Theoretically a person sitting in a landlocked country who never saw the sea is beneficiary of
245 Area who is impacted due to excessive straight baselines. The creeping jurisdiction of a coastal sate in Area means that every human being on earth becomes party to the conflict on account of undue encroachment in the sea. The gist of various activities in different maritime zones which are impacted due to excessive baselines is attached as Appendix-V to this study.
246 CHAPTER 11
IMPACT OF STRAIGHT BASELINES ON EXCLUSIVE ECONOMIC ZONE
The oceans and seas maintain earth‘s hydrologic cycle and climate system. The law of the sea is the only international discipline that mostly, provides symmetric rules for legislations in the various maritime zones and diplomacy for the states. The sea is a great source of inhibiting rich living resources like fisheries, marine mammals, fauna, flora and housing non-living resources like hydrocarbons, metals, salts, new pharmaceutical compounds etc. Needless to emphasize that sea is an important and cheapest medium of cargo transportation around the world.
Before the 20th century, the general perception was that resources of sea were infinite or in abundance to meet the requirement of human beings for all the times to come. Soon it was realized that natural resources were not infinite as was perceived. High seas paradigm shifted from res nullius to res communes. The common heritage of mankind concept evolved from res communes. The value of sea has increased manifold due to depletion of food and other resources on land in view of rising population.
The developing and under-developed countries had a long outstanding desire to protect their part of resources in the sea. By UNCLOS-III negotiations, it became evident that the number of states desiring appropriation of maximum sea resources was too large. Major maritime nations on the contrary were determined to ensure their unabridged freedom in the seas. EEZ sovereign rights concept over sea resources struck a balance between the two approaches.
Genesis of EEZ
The roots of EEZ can be traced back in the continental shelf and exclusive fishery zone by combining and developing the two.1050 Kenya is the pioneer in introducing and proposing the concept of EEZ in 1971 which mustered great
1050 Harris, Cases and Materials, (2004), 466. Also in Attard, Exclusive Economic Zone, (1987), 1.
247 support from African and Asian states.1051 At the same time Latin American states developed ‗patrimonial sea‘ or EEZ concept. In 1972 the Latin-American states joined under the banner of a declaration to promote 200NM patrimonial sea for the purposes of controlling the natural resources of seabed and subsoil.1052 These approaches ultimately converged into EEZ by the developing states as well as from some developed states like Norway and Canada.1053
Legal Status of EEZ
According to UNCLOS; EEZ is, ‗an area beyond and adjacent to the territorial sea‘1054 and; ‗shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured‘.1055 EEZ or patrimonial sea is a zone which stretches upto 200NM measured from the baseline.1056 About the EEZ, Mukherjee has written;
―[…..] it is widely considered to be rooted in the Latin American concept of the patrimonial sea. It is interesting to note that conceptually the expression "patrimonial sea" is derived from the land territory being perceived as the "fatherland" or "land of the forefathers" in some national communities‖.1057
In other words a coastal state may legally extend its EEZ to 200NM or 360 kilo- meters from the baseline for exercising sovereign rights. Taking territorial sea a sovereignty zone extending 12NM, practically EEZ would be only 188NM. Similarly, if contiguous zone is considered from its original jurisdiction point of view in the light of Articles 33 and 303 of UNCLOS, EEZ is left with only 176NM from the outer end of contiguous zone. This resource oriented zone is an offspring of the negotiations done at UNCLOS-III. Claiming of EEZ and its extent is not a compulsion on coastal state rather an option.
1051 Churchill and Lowe, LOS, (1999), 160. Also in Attard, Exclusive Economic Zone, (1987), 22. 1052 Specialized Conference of Caribbean Countries Concerning the Problems of the Sea: Declaration of Santo Domingo, 66 AJIL 5, pp. 918-920 (1972), 918. 1053 Churchill and Lowe, LOS, (1999), 160. 1054 UNCLOS, Article 55. 1055 Ibid., Article 57. 1056 O’Connell, LOS, Vol-I, (1982), 552. 1057 Mukherjee, MONALISA Project, 26.
248
EEZ took its conceptual birth from 1945 Truman Proclamation which acted as catalyst for lodging greater claims. No doubt, however, that a few states like UK and Venezuela in 1942 had an agreement regarding seabed of the Gulf of Paria1058 and Argentina in 1944 claimed1059 resources through a continental shelf decree. Once the seed for claims to resources of sea was sown, it had a quick germination leading to a number of claims by different states. Latin American states would have a particular mention for claiming rights over seabed and water columns. In the clash of interests the things do not go by the way one plans but by their own ways. Despite the state practice or evolving of customary law at regional level it could not assume the shape of codified treaty law as EEZ was not part of ILC report or TSC.
By the time negotiations UNCLOS-III commenced, the idea of resource zone had matured and a practice had already evolved claiming 200NM zone with peculiar reference to Latin American states. Most of the states had been over enthusiastic about their claims.1060 Due to wide ranging coastal state practice EEZ concept acquired the status of customary law.1061 The same was endorsed by the ICJ in 1985 during Libya/ Malta continental shelf case.1062 According to a survey report1063 of 2013, 137 states have claimed an EEZ up to 200NM, whereas, in accordance with CIA World Factbook, by 2014, over 130 states have claimed 200NM EEZ.1064 The Graph-71065 provides an idea of the EEZ claims of various extents by the coastal states.
1058 Charney and Alexander, Maritime Boundaries, Vol-I, (1993), 651. 1059 Argentina Decree No. 1,385 Concerning Mineral Reserves, Jan. 24, 1944, UN, Laws and Regulations on the Regime of the High Seas, Vol-I, (New York: 1951), 3. 1060 Table of Claims to Maritime Jurisdiction (2011) available at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/table_summary_of_claims.pdf (accessed on 27 June 2015). 1061 Attard, Exclusive Economic Zone, (1987), 1.Also in Churchill and Lowe, LOS, (1999), 161. 1062 Continental Shelf (Libyan Arab Jamahiriya / Malta), Judgment, I. C.J. Reports 1985, p. 13, Para 34 at 33. 1063 Source: http://www.nationmaster.com/country-info/stats/Geography/Maritime- claims/Exclusive-economic-zone# (accessed on 28 June 2015). 1064 Source: https://www.cia.gov/library/publications/the-world-factbook/fields/2106.html (accessed on 28 June 2015). 1065 Ibid.
249 Graph-7
The area of sea covered in EEZ claims of the countries is 101.9 million km2 (approx).1066 EEZ concept has undoubtedly assumed the status of customary law without any contest by the states. Churchill and Lowe point out the; ‗tendency for the rights to pass more quickly into custom than duties‘.1067 No customary law has yet evolved on the exact nature of the zone regarding its uses and activities in it. If every eligible coastal state claims 200NM EEZ it would cover 31.9 M NM2 area of sea, which is 30% of the oceans or 29% of the earth or equivalent to land territory of the world.1068 Indeed, it appropriates large swaths of sea into coastal jurisdiction of the states. EEZ regime of the globe contains around 90% of world‘s marine fisheries,1069 87% of submarine oil deposits and 10% of the manganese nodules.1070
On one hand UNCLOS grants sovereign rights to the coastal states for exploring and exploiting natural resources in EEZ. On other hand it obliges coastal states to conserve and manage resources with cooperation of other states. Theoretically it
1066 Schoolmeester and Baker, Continental Shelf, (2011), 28. 1067 Churchill and Lowe, LOS, (1999), 162. 1068 Robert W. Smith, Exclusive Economic Zone Claims: An Analysis and Primary Documents (Netherland: Martinus Nijhoff Publishers, 1986), 3. Also in Schofield, Blurring the Lines, (2009), 2. 1069 FAO 2011, Preface. 1070 Churchill and Lowe, LOS, (1999), 162.
250 is easy to undertake management of living resources of 200NM large area of sea. Practically it is an arduous task to manage the zone on the basis of scientific data. For most states claiming EEZ is just a psychological satisfaction. The national marine policies are scarce on deciding total allowable catch of fish for maximum sustainable yield. Some countries still haven‘t asserted their jurisdictions, leaving resources off the coasts for others to exploit.1071
It is evident that if coastal states genuinely claim 200NM EEZ a large sea would come into coastal state jurisdictions. Should there be a case of excessive straight baselines, EEZ may push the extent further seaward. This situation poses serious impacts on each and every zone with specificity of EEZ being interface with high seas. Some salient impacts which unlawful straight baselines may accrue are discussed under different headings.
Navigation
Navigation in the sea has been in vogue since early times for multifarious purposes. The foremost objective on the agenda of nations whether developed or developing alike is safe navigation for their flag ships for sea borne trade. Gold opines that oceans as means of transport of goods and people have not been addressed by the new law of the sea.1072 From historical evolution perspective of maritime law given in chapter 2 of thesis, it is evident that freedom of navigation in all ages had been a predominant factor in sea uses. The ships belonging to Egyptians, Phoenicians and Greeks used to traverse on long voyages from early times when there was no sign of power propulsion.
Most of the shipping routes of the world pass through EEZs of coastal states.1073 Converting a vast area of seas into a coastal state EEZ with cognizance in a variety of ways has many implications. The position becomes more complex
1071 Syma A. Ebbin, Alf HåkonHoel and Are K. Sydnes Ed., A Sea Change: The Exclusive Economic Zone and Governance Institutions for Living Marine Resources, (Netherlands: Springer, 2005), 217- 218. 1072 Gold, Maritime Transport, (1981), xix. 1073 Churchill and Lowe, LOS, (1999), 162.
251 when high seas are unfairly usurped as EEZ due to wrong application of straight baseline system. Notwithstanding the liberties of free traversing1074 of vessels through this zone, it presents significant restrictions on navigational regimes. Article 56(2) of UNCLOS binds the coastal state to follow the doctrine of ‗due regard. Whereas Article 58(1) grants navigational and over-flight freedoms to flag states in terms of UNCLOS Article 87 concerning high seas. Article 87(2), nevertheless, ordains the flag states to exercise their freedoms of navigation with due regard to the other states‘ interests. Indirectly it hints at according due regard by the flag states to the interests of coastal state.
There are a number of coastal state limitations or restrictions, inter alia, applicable to foreign shipping in the EEZ; firstly, entitlement for establishing artificial islands, structures and installations1075 and 500 yards safety zone1076 around them. Secondly; enforcement and execution of regulations1077 in the form of inquiries and taking measures like boarding, visiting, inspection, arrests or detention of vessels and imposing of penalties for the violations relating to resources.1078 Thirdly; it allows carrying out hot pursuit for the violations concerning EEZ regime.1079 Fourthly; contiguous zone jurisdictions in legal terms despite practically being part of EEZ limits.1080 Fifthly; laws and regulations adopted for preventing, controlling and reducing dumping in EEZ.1081 Sixthly; laws and regulations adopted to prevent, reduce and control pollution from vessels in EEZ.1082 Seventhly; adopt route system for vessel navigation with the approval of International Maritime Organisation (hereafter ―IMO‖).1083
The clash of interests between the coastal states and flag states may prove a
1074 UNCLOS, Article 58(1). 1075 UNCLOS, Article 56 (1)(b)(i). 1076 Ibid., Article 60(5). 1077 Ibid., Article 220. 1078 Ibid., Article 73. 1079 Ibid., Article 111(2). 1080 Ibid., Article 33. 1081 Ibid., Article 210(5). 1082 Ibid., Article 211(5). 1083 The International Convention for the Safety of Life at Sea (SOLAS) 1974, Chapter V, Regulation 10, para 2.
252 potential conflict.1084 Foreign vessels and aircraft are subject to obligation of ‗due regard‘ to the rights and duties of coastal State. They are obliged to observe the coastal State‘s legal requirements in consonance with international law in general and UNCLOS in particular.1085
Most of the traditional navigational routes where vessels enjoyed complete high seas freedoms have already been lawfully appropriated by coastal states‘ EEZ and consequent regulations. The grievances of flag states on vital navigational concerns are multiplied on account of coastal state straight baseline delineation ultra vires (beyond law). It makes a big difference when a vessel traverses in the territorial sea, contiguous zone, EEZ or on the high seas. The regime of every zone has its own set of rights and obligations on navigation of vessels. The area already controlled by coastal jurisdictions of various kinds is not easily digestible for the major maritime nations. Appropriation of more expanse of water through whimsical straight baselines and sea denial, not in military sense, is bound to ignite the conflicts. Paradigm shifts when a flag vessel is subjected to coastal state jurisdictions unduly due to excessive claims on sea whereby flag state exclusive freedom is restricted. If freedoms of navigation are asserted against coastal states‘ stance like US has done in some cases may lead to major conflicts.
The collision incident of a Chinese jet fighter and a US spy plane on April 1, 2001 some 70NM off the coast of Hainan is a serious international concern. Both the countries took contradictory stance; US for flying under navigational freedom rights whereas violations of EEZ laws and regulations from Chinese point of view.1086 In this incident the symptoms might have subsided for the time being but disease has the potential of eruption in future with catastrophic effects. Ambiguous language of UNCLOS provisions is already posing serious concerns. The conflicted jurisdictions between the states due to unfounded straight baselines may have deleterious impacts. The objective of UNCLOS is to
1084 Churchill and Lowe, LOS, (1999), 175. 1085 UNCLOS, Article 58(3). 1086 Ji Guoxing, Rough Waters in the South China Sea: Navigation Issues and Confidence-Building Measures, Asia Pacific Issues No. 53, (Hawaii: East West Centre, 2001), 2.
253 balance the competing interests of states to maintain peace and order of the oceans. The UNCLOS and HSC unequivocally refute any idea of high seas appropriation by coastal states reading; ―No state may validly purport to subject any part of the High Seas to its sovereignty‖.1087 Any extension of coastal zones in the high seas means direct confrontation with the spirit of the UNCLOS and international community.
Living and Non-Living Resources
UNCLOS grants sovereign rights to coastal states to explore and exploit natural resources of EEZ1088. The coastal states are bestowed rights for; ―[…..]the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil‖.1089
The sea being habitat for marine living resources, significantly, contributes to global food security. Fish provide 10 percent of proteins to over 4.9 billion people worldwide1090 as over 90% fisheries are found in EEZ of coastal states. According to a report living of over 50 million people around the world is connected with the fish catch.1091 The population growth in the world has put pressure on the countries‘ fishery industries and policies. The words ‗conserving‘ and ‗managing‘ connote that in the spirit of these words the coastal state would require certain regulatory framework.
The exploration and exploitation of other living and non-living resources are the concern of each and every state due to diminishing of land resources and advancement in technology. Comparison of marine fish catch for the decades from 1950-2010 points towards a trend of gross increase in dependence of countries on this sea resource as depicted in Graph-8.
1087 HSC, Article 2 and UNCLOS, Article 89. 1088 UNCLOS, Articles 55-57. 1089 Ibid., Article 56(1)(a). 1090 FAO 2012, xvii. 1091 The Future of Fish – The Fisheries of the Future, 2 World Ocean Review (Maribus, 2013), 31.
254 Graph-8 (Adapted from FAO report on World Fisheries and Aquaculture 2014)
Legally the phase ‗sovereign rights‘ is quite different form ‗sovereignty‘. Although, the coastal states have sovereign rights in the EEZ, yet, with a few exceptions, have sovereignty to explore and exploit the natural resources. Natural resources undoubtedly do not include manmade platforms, wrecks and structures lying on the sea bed of EEZ. But it is perceived that those manmade wrecks which are decomposed or acquire a different composition or totally covered by natural resources assimilating such wreck would probably become part of natural resources. This is with the exception that such manmade entities when lying on the seabed of declared contiguous zone shall not be governed by EEZ.
The water column of EEZ is free for navigation but resources in the superjacent waters including right to generate energy from currents bear exclusiveness of a coastal state. She may legislate about regime of EEZ, exercise jurisdiction, prosecute and punish for infringement of her regulations. Arrests of fishermen by coastal states for poaching in their EEZ are a routine matter world over but the phenomenon has specificity in the Asian region.1092 Looming of serious conflicts on overlapping claims, disputed delimitations with special reference to EEZ on account of controversial straight baselines may not be ruled out. The eyeball to eyeball situations between forces of different states may be disastrous.
1092 Ji Guoxing, Rough Waters in the South China Sea: Navigation Issues and Confidence-Building Measures, 6.
255
In 1970 UN General Assembly declared that activities in the ‗Area‘ and benefits are exclusive reservation for mankind.1093 UNCLOS emphasizes in similar terms that conduct of activities in the Area shall be for mankind as a whole to benefit.1094 Amongst the non-living resources, the hydrocarbons may stand out distinctively. Their importance is not likely to reduce in the nearby future. The extension of EEZ because of excessive straight baselines may come into direct clash with the individual state and interests of comity of nations in the ‗Area‘1095.
The disputes over excessive straight baselines may arise in different categories in relation to expansion of sovereign rights. Area being part of the high seas, the first conflict may pitch between a particular state and ISA representing every person on earth. The expansionist state may also logger head with other states having fisheries interests in the sea which they might treat as high seas. A third clash may brew up between the firm awarded the contract for exploration and exploitation of resources by the ISA and the coastal state. It has been remarked that EEZ regime did not mean either the end to international politics of oceans or salience for ocean governance at domestic level.1096
In addition to living and non-living resources, the third category relates to historical and archaeological objects lying on the bed of ‗Area‘. In the spirit of common heritage, the whole human race as beneficiary comes into conflict with the coastal state due to arguable straight baselines. Some states being the original owner of cultural or historical objects become special party to the conflict due to their preferential rights over such heritage in the Area.1097 Rear Admiral Athar Mukhtar, during informal discussion with the author on 22 February 2015, shared that the marine resources may pose a potential threat of military clashes. The increase in population and reduction of land resources may risk the contest in
1093 UN General Assembly Res. 2749 (XXV) of 17 December 1970. 1094 UNCLOS, Article 140(1). 1095 Ibid., Article 136, 137 and 138. 1096 Syma A. Ebbin, Alf HåkonHoel and Are K. Sydnes Ed., A Sea Change: The Exclusive Economic Zone and Governance Institutions for Living Marine Resources, (Netherlands: Springer, 2005), 39. 1097 UNCLOS, Article 149.
256 maritime zones even based on legitimate straight baselines.1098 Tønnesson expresses similar views about the risk of naval combat during exploitation of oil in the contested sea areas.1099
Marine Scientific Research
Traditionally MSR is one of the freedoms available to states in the customary international law1100. Until the mid of 20th century, the literature on law of sea did not contain anything about scientific research and no legal control on conducting such research was perceived necessary.1101 Tanaka calls MSR a foundation for the ocean governance.1102 The issue of MSR came into discussion for codification during the HSC negotiations for its inclusion in other high seas freedoms1103 but could not form part of substantive provision.1104 ILC,1105 UNESCO and IMO1106 deduced that MSR was included in the high seas freedoms.
CSC, in general, provided liberty of action for research concerning fundamental oceanography or other scientific research devoid of any abridgement on the part of coastal states. CSC qualified this freedom by subjugating any kind of research in the continental shelf to the coastal state consent.1107 Notwithstanding this, the convention at the same time emphasizes on not withholding consent by the coastal state unnecessarily.1108 Joint interpretation of Article 5(1) and (8) distil that research in superjacent waters of continental shelf would have no restrictions but research on the seabed would require coastal state consent.
1098 Rear Admiral Athar Mukhtar is Director General Pakistan Maritime Security Agency. 1099 Stein Tønnesson, "Resolving the South China Sea Conflict." Paper presented at the Workshop on the South China Sea Conflict, Centre for Development and the Environment, University of Oslo, 24-26 April 1999. 1100 D.P. O’Connell, The International Law of the Sea, Vol-II, (Oxford: Clarendon Press, 1982), 1026. 1101 Churchill and Lowe, LOS, (1999), 400. 1102 Tanaka, International LOS, (2012), 335. 1103 ILC Yearbook 1956, Vol-I, 29-32. 1104 HSC, Article 2. 1105 Churchill and Lowe, LOS, (1999), 401. 1106 D.P. O’Connell, The International Law of the Sea, Vol-II, (Oxford: Clarendon Press, 1982), 1027. 1107 CSC, Article 5(8). 1108 Article 5(1) of CSC.
257
The issue of MSR got geometric discussions during UNCLOS-III. The developing countries demanded control over scientific research whereas maritime powers reiterated on maximum freedoms on research. As a result UNCLOS has furnished a comprehensive regime of MSR comprising Articles 143 and 238 through 257. Surprisingly despite containing twenty articles on the subject, UNCLOS does not define MSR. Introduction of EEZ in UNCLOS has changed the position of MSR significantly.
MSR in the internal waters and territorial sea1109 is regulated by the coastal state being sovereignty zones. No research whether pure1110 or applied,1111 may be validly carried out in these zones without the consent and conditions prescribed by the coastal state. The research activities in territorial sea without coastal state‘s express consent are prohibited to an extent that hydrographic soundings and surveys which are considered incidental to safe navigation make the passage of a foreign ship non innocent.1112 That is the reason that UNCLOS obliges the coastal state to ensure safety of navigation, navigational aids and facilities in territorial sea. The state may stipulate rules and regulations pertaining to innocent passage within the bounds of UNCLOS and international law.1113
UNCLOS Article 246(2) is almost identical to Article 5(8) of CSC relating to MSR in the EEZ and continental shelf. The essence of the articles is that no research in these zones can be conducted without the authority or permission of the coastal states. MSR in case of ‗pure‘ research must not be ‗normally‘ withheld by the coastal state. MSR in case of ‗applied research‘ in situations given in Article 246(5) of UNCLOS may be withheld by the coastal state on many reasons. This coastal state decision is not questionable and may not be taken up
1109 UNCLOS, Article 245. 1110 MSR shall be exclusively for peaceful purposes and in order to increase scientific knowledge of the marine environment for the benefit of all mankind. Source: article 246 (3) of UNCLOS. 1111 MSR which is of direct significance for the exploration and exploitation of natural resources of coastal state. Source: UNCLOS, Article 246(5). 1112 TSC, Article 2 and UNCLOS, Article 19(2)(j). 1113 UNCLOS, Article 21(1)(a) & (b).
258 for interpretation or dispute resolution procedure at any forum.1114 In the circumstances when a coastal state and other states have grievances on legitimate EEZ, how the conflicts may be avoided due to enhanced limits of EEZ in the sea due to foul straight baselines.
Military Activities
The sea is multipurpose medium for the human being; some uses have become known to people whereas other uses are still hidden. The vitality and importance of sea has been accepted in all the ages. Navigation in the sea and its freedom has remained a primary focus and concern for the societies.1115 According to IMO over 90% of the global trade by volume is carried out through sea.1116 The interests of coastal states in the sea rest on navigation, trade, commerce, maritime safety, security, coastline protection, coastal and hinterland interests having high ranking priority on national agendas.1117 Black postulates that; ―Warfare at sea is essentially a contest about the maritime lines of communication. These lines are used for trade, for power projection into territories close to the sea and as a source of wealth extracted by violence or through protection from violence.‖1118
Navigation of commercial shipping and warships alike has been acknowledged even in the territorial sea of coastal states subject to conditions imposed by law for innocent passage1119. UNCLOS does not deal with the Laws of Armed Conflict however, Article 29 of UNCLOS has defined warship.1120 During peace time UNCLOS accords warships a preferential treatment1121 from jurisdictional aspects of coastal states. Warships, including submarines and government ships
1114 UNCLOS, Article 297(2). 1115 Azuni, Maritime Law of Europe, Vol I, (1806), 119. 1116 Source: https://business.un.org/en/entities/13 (accessed on 14 August 2014). 1117 Mukherjee, MONALISA Project, 36. 1118 Jan Glete Ed., Warfare at Sea 1500–1650, Maritime Conflicts and the Transformation of Europe, (London / New York: Routledge, 2000), 1. 1119 Sub-paragraphs 2 (b) (e) and (f) of Article 19 of UNCLOS. 1120 Warship means a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline. 1121 UNCLOS, Article 32.
259 not used for commercial purposes, are treated sovereign entities of the states and are not subjected to jurisdiction by states other than flag states. While at sea this class of vessels is considered floating sovereignties of states and carry equal status irrespective of the size of their flag states.
Traditionally the warships have been treated as sovereignty of their state even in the ports of other states.1122 On high seas warships are exempted from any jurisdiction of coastal state1123 in the spirit of maxim; ―an equal cannot have jurisdiction over an equal‖.1124 It is because warships are considered implementation arm of their flag states at sea. The majority of coastal states have consensus that the warships have unimpeded right of navigation in EEZ. The difference arises on, inter alia, military manoeuvres, exercises, intelligence gathering or naval surveys carried out in the EEZ of other coastal states. Broadly the world is distributed in two groups; one group mostly comprising major maritime nations who want to assert the high seas freedoms in the EEZ. Other group consisting of developing countries or weak maritime nations contend that high seas freedoms mean only peaceful navigation of warships and nothing else. Both sides have their own counter arguments.
Navies of the world have assumed multifaceted roles ranging but not limited to; from benign operations,1125 law enforcement and security of states including protection of residents from attacks from sea to landward. The major maritime powers go for national power projection in accordance with the dictum of Lord Grey; ―Diplomacy without force is like an orchestra without instruments‖1126. Flag showing is another military tactic to make the world in general and enemy in particular to realize that navy of the state has presence in the area. Navy stands
1122 Azuni, Maritime Law of Europe, Vol I, (1806), 246. 1123 UNCLOS, Article 95 and 96. 1124 Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, ICJ Reports 2012, p. 99, Separate Opinion of Judge Keith, 161. 1125 The use of armed force for the capabilities not directly associated with combat that they can provide. Source: Australian Maritime Doctrine: 2nd Ed., RAN Doctrine 1 -2010, 185. 1126 Daniel Patrick O'Connell, The Influence of Law on Sea Power, (Oxford: Manchester University Press, 1975), 4. Also in Churchill and Lowe, LOS, (1999), 426.
260 out distinctively being both; as benign element in peace and weapon in the war. Navy as compared to the army does not require intruding in territory of a sovereign to accomplish its missions effectively.1127
The position was not alarming till 1958 TSC as high seas started from exterior limits of territorial sea that was only 3NM. The regime of contiguous zone and continental shelf presented no impediments for men of war. Coming into force of EEZ regime changed the whole structure of maritime zone inceptions. Unlike continental shelf, EEZ occupies the resources; living and non-living including in the superjacent waters. Controversies concerning military activities in the sea emphatically stemmed from EEZ.
Maritime powers legitimise all military activities, mutatis mutandi, in the EEZ which are available in the high seas. Coastal states have strong reservations on the idea of complete high seas freedoms in the EEZ. Table-4 portrays a variety of stances by states regarding military installations, exercises, manoeuvres or MSR in their EEZ.1128
1127 John B. Hattendorf, Talking about Naval History: A Collection of Essays, (USA: Naval War College Press, 2010), 314. 1128 Adapted from Sources: The legislation of these states can be found at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/regionslist.htm (accessed on 13 February 2015). The declarations upon ratification of the LOSC can be found at http://www.un.org/depts/los/convention_agreements/convention_declarations.htm (accessed on 13 February 2015). Also Stuart Kaye, Freedom of Navigation in the Indo-Pacific Region, Papers in Australian Maritime Affairs No. 22, (Australia: Commonwealth, 2008), 8-12. Also in Moritaka Hayashi, Military and Intelligence Gathering Activities in the EEZ: definition of key terms, 29 Marine Policy (2005), 131-132. Also in Kraska, Maritime Power and the Law of the Sea, (2011), 303. Also Roach and Smith, Excessive Maritime Claims, (2012), 379-398. Also in KeyuanZou, Law of the Sea in East Asia, (New York: Routledge, 2005), 17-18. Also in Tanaka, International LOS, (2012), 367-370.
261 Table-4
Weapon testing is another desolate area which does not provide clarity on whether it is included in freedoms available in EEZ or not? Whether these activities are covered in the; ―other internationally lawful uses of the sea‖1129 is a matter of great argumentation amongst the states and scholars. The legality of weapon testing by major maritime powers in the sea has remained questionable by the impartial and neutral observers. There have been contentions that hydrogen bomb tests contravene the customary prescriptions of the law of the sea, provisions of UN Charter and Trusteeship agreement.1130 French Nuclear tests followed the pursuit and the resonance of these tests was heard even louder and severer than US hydrogen bomb test. Several countries which included Australia, Peru and New Zealand lodged strong diplomatic protests with France. Chile suspended commercial relations too with France.1131
1129 UNCLOS, Article 58(1). 1130 Emanuel Margolis, The Hydrogen Bomb Experiments and International Law, 64 Yale Law Journal 5 pp. 629-647 (1955), 629. 1131 Anthony D’Amato, International Law and Political Reality: Collected Papers, Vol-I, (Netherlands: Kluwer Law International, 1995), 234-235.
262
The major maritime nations and coastal states emphatically squabble to support their fundamentally divergent views on military activities in the EEZ. Having written, declared and asserted points of view by the opposing states, it may not be denied that the provisions of UNCLOS on the issue are vague and ambiguous. The legal validity or otherwise of military activities and their extent in EEZ of a foreign coastal state is a big question mark.
The strong positions held by states were quite visible during negotiations at UNCLOS-III. The 1973 Addis Ababa Declaration by the Organization of African Unity establishing an EEZ up to 200NM, recognized;
―the coastal States shall exercise permanent sovereignty over all the living and mineral resources and shall manage the zone without undue interference with the other legitimate uses of the sea, namely, freedom of navigation, over-flight and laying of cables and pipelines‖.1132
The balance between two extreme standpoints could not be different from a compromise in the form of EEZ regime under UNCLOS with stipulation of ‗due regard‘ for the interstate interests. The problem is not much bothering with the sovereignty zone and high seas. The most problematic zone is EEZ due to enormous size and bound by shared clash of interests of states. The question arises whether freedom of navigation include military activities as UNCLOS provisions do not provide any specific guidance? If the answer is yes, what is the extent of these liberties? Whether taking on-board the coastal state or her permission is required to undertake military activities?
Article 86 of UNCLOS is crucial in the academic debate. It states that high seas is an area not included in the internal waters, territorial sea of a coastal state and EEZ. It gives preponderance to the opinion that EEZ has limited high seas freedoms. It is like high seas for certain freedoms but does not have sameness of high seas characteristics. Galdoresi and Kaufman endorse this concept about EEZ
1132 Extract from the Official Records of the Third United Nati ons Conference on the Law of the Sea, Vol-III, (Documents of the Conference, First and Second Sessions), Document:-A/CONF.62/33, para 7 at 64.
263 viewing; ―It is not a part of the high seas, although high-seas-like freedom exists there with respect to navigation. EEZ claims extract approximately 30 to 36 per cent of the world‘s oceans from waters traditionally considered high seas.‖1133 EEZ being sui generis1134 zone has neither residual high seas nor residual territorial sea rights.1135
Some coastal states interpret that the freedom of navigation in their EEZ does not include military activities. They perceive this activity as a matter of concern for their sovereign rights in the zone and national security. UNCLOS does not allow any reservation or exception1136 from any obligation under the convention. Some states utilized their option of making declaration or statement1137 under UNCLOS to register their point of view on this issue. They denounced unfettered military activities in their EEZ.1138 Altogether opposite view point is carried by some major maritime powers particularly USA supporting unabridged military activities in foreign EEZ.1139 US interpretation of ‗other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, is that Article 58 permits naval operations in the foreign EEZ. Military activities are protected in the scope of FON.1140 Koh, the President of
1133 George V. Galdoresi and Alan G. Kaufman, ‘Military Activities in the Exclusive Economic Zone: Preventing Uncertainty and Defusing Conflict’, 32 California Western International Law Journal 2 pp. 253-301 (2002), 254. 1134 A Latin word meaning; ‘in a class or group of its own‘: ‘not like anything else’. Source: http://www.merriam-webster.com/dictionary/sui%20generis (accessed on 6 June 2015). 1135 Churchill and Lowe, LOS, (1999), 165-166. 1136 UNCLOS, Article 309. 1137 Ibid., Article 310. 1138 Examples; Bangladesh, Brazil, Burma, Cape Verde, Cambodia, China, India, Malaysia, Maldives, North Korea, Malaysia, Pakistan, Sri Lanka, Thailand, Vietnam etc. Source: United Nations Convention on the Law of the Sea: Declarations and Statements http://www.un.org/depts/los/convention_agreements/convention_declarations.htm (accessed on 1 April 2015). 1139 Raul (Pete) Pedrozo, Coastal State Jurisdiction over Marine Data Collection in the Exclusive Economic Zone, in ‘Military Activities in the EEZ’ edited by Peter Dutton, China Maritime Studies Institute, Vol-7, US Naval War College (2010), 23. Also in Mark Valencia, ‘Policy Forum 11-28: Intelligence Gathering, the South China Sea, and the Law of the Sea’, NAPSNet Policy Forum (Nautilius Institute, 30 August 2011). 1140 Mark Valencia, ‘Policy Forum 11-28: Intelligence Gathering, the South China Sea, and the Law of the Sea’, NAPSNet Policy Forum (Nautilius Institute, 30 August 2011) http://www.nautilus.org/publications/essays/napsnet/forum/Valencia_SCS (accessed on 2 April 2015).
264 UNCLOS III, in 1984, presented his view on this issue saying;
―The solution in the Convention text is very complicated. Nowhere is it clearly stated whether a third state may or may not conduct military activities in the exclusive economic zone of a coastal state. But, it was the general understanding that the text we negotiated and agreed upon would permit such activities to be conducted[…..]‖.1141
On one hand UNCLOS provides full latitude for FON for the ships, military or commercial. Conversely over eleven1142 times, starting from preamble, UNCLOS has repeated the word ‗peaceful‘ purposes or uses of the sea. The phrase ‗due regard‘ for the mutual interest of states has been used for over twenty1143 times in UNCLOS, again starting from preamble, to maintain order of sea and for peaceful coexistence. Finally UNCLOS calls upon the state parties to refrain from using force or any threat to; territorial integrity or political independence of other state by violating the international law enshrined in the UN charter.1144
The traditional military activities like naval manoeuvres, military exercises, flight operations, weapons testing, firing, naval survey, intelligence gathering has had a fundamental change. Advancement in technology is opening up new vistas of military activities in the EEZ. The balance of interests amongst the states created by UNCLOS is probably balancing out due to more knowledge about the sea and technological advancements. Neither UNCLOS nor any other convention has settled the issue of military uses or their extent in foreign EEZ.
With the sophistication of modern military gadgetry it would be difficult to decide as to when the purpose is peaceful and when it becomes hostile or un-peaceful for the coastal state. This issue has a great danger in the backdrop if parties to
1141 Jon M. Van Dyke, ‘Military Ships and Planes Operating in the Exclusive Economic Zone of Another Country’, 28 Marine Policy 1 29-39 (2004), 31. 1142 UNCLOS, Preamble (unnumbered Para 5), Articles 88, 141, 143, 147 (2) (d), 155(2), 240 (a), 242 (1), 246 (3), 279 and 301. 1143 UNCLOS, Preamble (unnumbered para 5), Article 27(4), Article 39(3), Article 56(2), Article 58(3), Article 60(3), Article 66(3)(a), Article 79(5), Article 87(2), Article 148, Article 161(a), Article 162(2)(d), Article 163, Article 167(2), Article 234 and Articl e 267. 1144 Ibid., Article 301.
265 conflict already have some rivalry. The case in point is the incident1145 of USN Ship Impeccable which did not only initiate a legal battle amongst the two powers but also posed a danger of physical interaction between warships of China and US. According to US official, naval ship was in the international waters fully consistent with international law and as per common practice.1146 Contrary to this, Chinese argued that USNS Impeccable violated China‘s special economic zone by conducting activities without China‘s permission.1147
Mukherjee posits that states undoubtedly consider themselves bound to protect their residents and citizens from attacks from the sea by taking security measures along coasts and seaways.1148 The coastal states believe that they have full sovereign rights on assets in EEZ. Coastal states want that the carrot (enjoyment of certain rights or privileges or incentives) for other states in their EEZ and stick (legal restrictions, enforcements, prohibitions etc.) in their own hands. Maritime or flag states want themselves to be in the driving seat without any coastal state checks concerning all activities in foreign EEZ as available on the high seas. Sam Bateman, an ex-Australian navy officer is of the view;
―Some military hydrographic surveys are not for peaceful purposes. Beach surveys or rapid military assessments to support possible amphibious landings or littoral operations against the coastal State would fall within the category of activities that constitute a threat to the coastal State.‖1149
When legal provisions are silent, customary practice is absent, state practice is divergent, developing states and maritime powers are adamant on their rigid
1145 Jing Geng, ‘The Legality of Foreign Military Activities in the Exclusive Economic Zone under UNCLOS’, Merkourios – International and European Security Law, Volume 28, Issue 74 (2012), Article, pp. 22-30 at 23. 1146 US Department of Defense, ‘DoD News Briefing with Geoff Morrell from the Pentagon’ (11 March 2009) http://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=4369 (accessed on 6 Jun 2015). 1147 Chinese Law’ Xinhua News Agency (10 March 2009) at http://news.xinhuanet.com/english/2009-03/10/content_10983647.htm (accessed on 6 Jun 2015). 1148 Mukherjee, MONALISA Project, 36-37. 1149 Myron H. Nordquist, Tommy T.B. Koh and John Norton Moore Ed., Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention, (Leiden / Boston: Martinus Nijhoff Publishers, 2009), 116.
266 stance on military activities, then how far peacefulness of sea can be ensured. The differences and sometimes conflicts have arisen whether the conduct of military activities is legitimate or not. What impact it may have on the issue if legitimacy of EEZ itself is challenged due to the use of unfounded straight baselines? The state carrying out military activity may contend that what coastal state has limited as internal waters or territorial sea is in fact EEZ or high seas.
The issue may become crucial if a maritime state tries to assert its military activity very close or within territorial sea of a coastal state treating it as EEZ. In other scenario if the military activity is carried out in the coastal state‘s EEZ asserting it as high seas with full freedom. The situation may change from just differences to hostilities. The impact of straight baselines on EEZ is particular in case of military activities. It is because most of the states do not opt for dispute resolution mechanism in such cases as provided in Article 298 of UNCLOS. The disputes on excessive claims of EEZ on account of controversial straight baselines are serious concern. The scenario may pose dual conflict; first asserting military activities as legitimized right in EEZ like high seas, secondly; not recognizing legitimacy of EEZ due to excessive straight baselines. These conflicts may frustrate the objective of UNCLOS for peace, order and security at sea in the spirit of UN Charter for general peace in world.
Laying of Submarine Cables and Pipelines
The concept of laying submarine cables is not new. It dates back to 1850 when the first1150 telegraph cable was laid in the sea. It was in the late 1970s and early 1980s, when satellite communication was facilitated by the fibre-optic technology.1151 It enhanced reliability, quality and quantity of transmission across the seabed. The Development of Internet brought a revolution in telecommunications as; ―cables carried large volumes of voice and data traffic with speed and security; the internet made that data and information accessible
1150 Carter, Submarine Cables and Oceans, (2009), 3. 1151 Ibid., 15-16
267 and usable for a multitude of purposes.‖1152 The rapid developments compounded the pressing requirements of society and states. As discussed in chapter-12, over 95% of the world communications depend on submarine cables turning this area of paramount attention.
The very first international instrument to govern submarine cables was concluded in 1884 containing provisions concerning protection of telegraph cables, outside the territorial waters.1153 The issue of submarine cables came under lot of discussions and deliberations during the work of ILC before its final proposal1154 which became the basis for 1958 HSC, CSC and UNCLOS. Most of UNCLOS provisions on submarine cables were adopted from HSC and CSC.
The submarine cables laid on the floor of oceans predominantly facilitate international communications.1155 Laying of cables and pipelines are increasing at an ever rapid speed opening new avenues for the international community. The pace, with which the developments have been experienced in the recent past, is likely to exert much pressure on ocean floor of the world in future. It has more relevance with continental shelf and EEZ of coastal states. Internet that has turned part and parcel of our daily life is enabled through cables lying on or under seabed.
UNCLOS gives freedom of laying submarine cables as well as pipelines in EEZ of coastal states.1156 Article 58(3) reiterates states to observe the fundamental doctrine of ‗due regard‘ concerning coastal states‘ rights and obligations. Conflicts may arise between states on inclusive and exclusive uses of sea for this purpose. The language of Article 58 suggests that it creates a check and balance between freedoms of international community and coastal state jurisdictions. The clash of interests between coastal state rights of exploration and exploitation of
1152 Carter, Submarine Cables and Oceans, (2009), 16. 1153 The 1884 Convention for the Protection of Submarine Telegraph Cables (Paris, 14 March 1884). 1154 ILC Yearbook 1956, Vol-II, 61. 1155 Carter, Submarine Cables and Oceans, (2009), 27 1156 UNCLOS, Article 58(1).
268 resources and other states‘ rights to enjoy freedom of laying pipelines and cables is natural. Environmental impact due to delineation of cables and pipelines is another area of controversies between coastal states and other states. Conflicts may start from whether environmental violation has been committed on high seas or in the EEZ of a state due to controversy over legal status of straight baselines.
The practice of coastal states shows a variety of procedures and regulations promulgated for surveying, delineation, repairs and maintenance of cables and pipelines. For example US require obtaining of permits from federal, state and local authorities. The process may take up to six months.1157 In certain situations of local opposition, it may take years to finally get approval.1158 The repair of cables in Indian territorial sea or EEZ requires licenses or approvals from seven different agencies that can take up to 32 days.1159 The interpretation of UNCLOS provisions has remained a dilemma. The states having competing interests have their own interpretations best suited to their purpose.
Different exhortations in UNCLOS may play its role in minimizing conflict between states but a convention or treaty cannot guarantee extermination of disputes. Apart from conflicts on interpretation of UNCLOS provisions, potential conflicts are in the offing due to excessive claims on account of straight baselines. A coastal state may apply territorial sea principles and regulations for laying pipelines and cables which may be considered EEZ or continental shelf by the other states due to differing criteria on straight baselines. An interesting question may arise as to what would be the status of those states which have objected to unjustified straight baselines of a coastal state and those who observed silence? The states which showed acquiescence with foul straight baseline criteria of a coastal state may not be able to challenge at later stage for cables and pipeline issue. It is subject to the condition that such state had the
1157 Douglas R. Burnett, Robert Beckman, Tara M. Davenport Ed., Submarine Cables: The Handbook of Law and Policy, (Netherland: Koninklijke Brill, 2014), 143. 1158 Ibid., 144. 1159 Presentation given by ICPC, “Submarine Cable Network Security” given at the Submarine Cable Protection Information Sharing Workshop, Singapore on 13 April 2009.
269 knowledge of wrong straight baselines through publicity of charts, coordinates or coastal state legislation.
The cables and pipelines have become vital for the economy, security and communication of all states vis-à-vis legitimate security interests of coastal states. States may have serious reservations on laying, repairing and operations of cables and pipelines. It is not easy to strike a balance, primarily, between these two sets of competing stake holders. Challenge to legitimacy of the maritime zones based on straight baselines adds to difficulties for orderly carrying out these activities.
The negotiators and drafters of provisions regarding cables and pipelines had a strong realization of potentiality of the clashes of interests. The spirit of Article 59 of UNCLOS suggests that enumeration of each and every interest of coastal and other states in EEZ is not possible. Absence of clear bifurcation of rights between two sides does not apportion these rights as residuary to anyone. No hard and fast law has been prescribed in this area as there may be number of situations unique to a particular region or area. Position may be quite different if pipelines and cables only pass through EEZ or through territorial sea or from both. Situation may be awkward when conflicts include challenging of legality of some zones on account of excessive straight baselines. In those scenarios, territorial sea in the eye of a coastal state may be contended as EEZ or continental shelf or high seas by other states.
To diffuse these conflicts, Article 59 uses the word ‗equity‘1160 to resolve conflicts in the light of peculiar circumstances. During the research bringing of any conflict on laying cables and pipelines before any judicial forum could not be observed. However, conflicts on legality of delimitation of zones by coastal state on this issue cannot be ruled out. Increased demands for cables and pipelines may result into serious challenges to the excessive claims based on controversial straight baselines.
1160 Equity, in Anglo-American law, the custom of courts outside the common law or coded law. Equity provided remedies in situations in which precedent or statutory law might not apply or be equitable. Source: http://www.britannica.com/EBchecked/topic/190876/equity (accessed on 27 May 2015).
270
Law Enforcement
UNCLOS has been called constitution of the seas. After limitation and delimitation of various maritime zones, the most vital part is regulation, control and law enforcement of maritime zones. Internal waters and territorial sea which are near land mass are comparatively easy to manage and control. This flexibility is not available in EEZ that is larger, distant and complex with more shared interests of states. The coastal states wish to flex their authoritative muscles seaward whereas flag states desire unabridged free navigation in the sea. These varying intentions of the states lead to conflicts in which unclear legal provisions of UNCLOS complement the controversies.
UNCLOS binds coastal states and other states in a string of cooperation and ‗due regard‘ for balancing their rights and obligations.1161 Examination of Article 56 seems to bestow a number of economic sovereign rights and their regulations on coastal states. Article 58 cross refers to articles 88 through 115 relating to availability of generally noneconomic high seas freedoms to the other states in coastal state‘s EEZ. Apart from air and sea navigational aspects, these freedoms mostly pertain to law enforcement. Other states may require engaging in counter piracy operations,1162 search and rescue missions,1163 venturing against vessels engaged in slave trade and suppression of drug trafficking in some situations and flag states‘ jurisdiction on their own flagships.
Mukherjee premises that technology and maritime law are often in conflict or inadequate to recognize or give legal effect to technology. Advancement in technology and its development is usually faster than law being driven by the technical and operational needs of industry in functional and economic terms. Contrasting to technology, law is inherently conservative and typically its
1161 UNCLOS, Articles 56 and 58. 1162 Ibid., Article 100. 1163 Ibid., Article 98.
271 development lags behind technological innovation.1164 The most difficult area for enforcement of laws whether national or international is the sea. Primarily obligation for law enforcement at sea rests either with flag states or coastal states or sometimes with both. International organizations ordinarily depend on states for implementation of their disciplines; the examples are IMO and ISA concerning environmental laws and regulations.1165 The situation may be dismal where there is a lack of governance on account of controversies over maritime claims between the states.
There are many common interests of coastal and other states in the EEZ. The joint interests drag states into conflict of interests. Law enforcement in EEZ involves many areas like; navigation, fisheries, exploration, exploitation of resources, MSR, offshore installations, cables or pipelines, military activities etc. Theoretically, the conflicts on account of improper straight baselines may start from first step i.e. internal waters. Flag states may contend internal waters of a coastal state as territorial sea for exercise of unimpeded innocent passage right. What coastal states may declare internal waters or territorial sea, maritime powers or flag states may posit it as EEZ due to rift on straight baselines notified by the coastal state. That is the reason that pre UNCLOS-I, ILC had been deliberating on the aspect of dispute resolution and proposed a mechanism for continental shelf. However, ILC did not consider any provision for territorial sea or contiguous zone disputes.1166
Change in geographical status of sea due to location of straight baselines may have colossal impacts on law enforcement at sea. An act of plundering or depredation at sea may be claimed an armed robbery by a coastal state treating the area as territorial sea based on their claimed straight baselines. The act may be termed piracy by other states considering sea being EEZ or high seas. Similar
1164 Mukherjee, MONALISA Project, 11-12. 1165 Doris König, The Enforcement of the International Law of the Sea by Coastal and Port States, 61 Max-Planck-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht 1 (2002), 2. 1166 Gurdip Singh, UN Convention on the Law of the Sea (Dispute Settlement Mechanisms), (India: Academic Publications, 1985), 6.
272 confrontation may develop on fisheries resources, where coastal state imposes its regulations to manage and control resources as EEZ regime due to their claimed straight baselines. Other states especially the neighbouring states may contest area as high seas for freedom of harvesting living resources. The coastal state may demand due regard doctrine in terms of EEZ, whereas other states may ask for high seas freedoms.
Excessive straight baselines may have immense impacts in certain areas like navigation or over-flight, laying cables and pipelines, marine environment, fisheries management and MSR. Similarly there is a category of activities like; delimitation of maritime boundaries, military activities and exercise of functions by the UN Security Council. The later areas are exempted from compulsory dispute settlement procedures provided in UNCLOS despite allegations against coastal state for violations1167. Contentions on straight baselines between coastal state claims and their negation by other states may have disastrous implications due to absence of any safety valve in the form of dispute resolution mechanism. Apparently small differences may transform into naval combats in which the old rivalries may contribute to jeopardize regional and international stability.
Inclusive Versus Exclusive Interests
History of sea has witnessed many vicissitudes on claims to its free use by all and claim for sovereignty. It happened too that in one era, a state demanded appropriation of sea for exclusive purpose. On other occasion the same state propounded logic for inclusive rights for freedom of sea. Exclusive rights relate to a coastal state control over an area of the sea or a particular activity whereas inclusive rights pertain to shared rights of all states.1168 The common thread of two opposing claims has been that weak maritime nations always advocated for exclusive jurisdiction in the sea, conversely powerful maritime nations raised the slogan for free seas. This is visible in case of land borders as well between the states. The powerful countries do not bother much about demarcation of land
1167 UNCLOS, Article 297 1168 Mcdougal and Burke, Crisis in LOS, (1958), 539.
273 boundaries. Similarly common area of sea is in the interest of major maritime nations as they can assert jurisdiction to distant areas of sea and can make benefit. O‘Connell views that;
―When one or two great commercial powers have been dominant or have achieved parity of power, the emphasis in practice has lain upon liberty of navigation and immunity of shipping from local control;[…..]. When, on the other hand, great powers have been in decline or have been unable to impose their will on smaller states, […..], the emphasis is lain upon the protection and reservation of maritime resources, and subsequently upon assertion of local authority over the sea‖.1169
The doctrines of mare Liberum and mare clausum, the two competing intellectual works, advanced one theme in reality i.e. national interests of their contesting parties. Grotius had been looking after Dutch interests whereas Selden tried to augment Britain stance. The present day concept of inclusive interests would be rights of all states including landlocked states. With the advent of common heritage of mankind doctrine, every human being irrespective of geographical boundaries is legal beneficiary of inclusive interests. Practically fruits have not been reaped out from the seabed effectively for the benefit of all states.
UNCLOS intended a balance between inclusive and exclusive interests. Excessive claims or jurisdictions no doubt stir balance of the sea. Exaggerated claims by a coastal state means creeping exclusive jurisdiction of inclusive free sea. Excessive inclusive claims by the international community or by some major beneficiaries in foreign EEZ mean squeezing of exclusive sea of coastal state. In practice, however, coastal states expand exclusive claims by deflating inclusive area of the sea. When there were only a few uses of sea, competing interests of states were less. Knowledge of sea and its resources is increasing rapidly which is making sea prone to more controversies and conflicts. As has been observed under cables and pipelines discussion in this chapter, fast developments demand more facilitation but coastal states are bringing stricter regulations.
1169 O’Connell, LOS, Vol-I, (1982), 1.
274 Competition of ‗inclusive‘ and ‗exclusive‘ interests is in fact a competition between ‗common‘ interests of international community and ‗special‘ interests of coastal states. Examination of O‘Connell‘s above version reveals that resources and their uses were at the mercy of some powerful states only. The maritime powers used to decide when to demand and emphasise on common or special rights. Absence of balance between territorial appropriation and openness of sea for all was a sheer shifting of interest from inclusive to exclusive or vice versa depending on their priorities. It was only during UNCLOS-III that maritime powers had to realize the genuine special economic needs of developing and underdeveloped countries. UNCLOS-III proved a weapon for correcting wrongs done in the past through misdistribution of inclusive wealth to developing or underdeveloped states.
Culmination of UNCLOS created a balance between inclusive and exclusive interests. It shall be congruous to say that historically the pendulum has mostly swung far and away. Most of developing countries have founded excessive claims on straight baselines on the basis of notional justifications. The result is that bad claims breed bad claims in turn. The states generally follow pursuit if they feel a method lucrative for them knowing well that it is wrong. These excessive claims have pushed inclusive seaward interests reducing sea for common interests of international community. Peaceful coexistence of inclusive and exclusive interests lies in cooperation and not in competition. Productive results can be achieved by following UNCLOS golden threads of ‗due regard‘ and ‗good faith‘ exercising rights and obligations by states. Admiral (Retd) Naqvi during discussion with author on November 12, 2014 shared; ―The coexistence with the sea is human necessity. We should live with the sea and should not try to control it.‖1170
Conclusion
The prime importance of EEZ is evident from the fact that customary EEZ
1170 Vice Admiral (Retd) Sikandar Viqar Naqvi is a former Commander Pakistan Fleet of the Pakistan Navy who has been a meritorious submariner.
275 evolved before legal EEZ during negotiation at UNCLOS-III. In spite of great discussions and deliberations on status as well as rights and obligations in this zone difference of opinions still prevail. The disagreements range from interpretation of basic UNCLOS provisions about EEZ to its legal status. Controversy over its limits due to selection of the type of baseline adds to the existing problems. Disputed straight baselines have multidimensional ramifications on EEZ regime. Maritime claims established on the basis of excessive straight baselines appropriate more sea for coastal state to assert its jurisdiction thereby reducing high seas for other states‘ activities. The creeping coastal state jurisdiction due to unilateral claims leads to competing interests of states. The foremost dispute arises on permissibility and extent of military activities in foreign EEZ. Rift exists even when EEZ is delimited legitimately. The difference on EEZ limits due to controversial straight baselines may pose additional threat that bears the potency to disturb maritime order of the globe. Two extremes of thinking on EEZ; residual sovereignty claimed by coastal states and residual high seas freedoms demanded by major maritime powers is a real riddle. To put it more simply it is a contest between internationalising EEZ and territorialising EEZ. Both extremes are against the compromising spirit of EEZ between appropriation of the sea and absolute freedoms. The states can neither have territorial sovereignty in EEZ nor complete high seas freedoms. Exercising a middle course between extra flexibility and utmost rigidity on construction of straight baseline procedural tenets is a real time remedy to avert disastrous impacts on EEZ.
276 CHAPTER 12
CONCLUSION / RECOMMENDATIONS
The thesis broadly delves on a crucial issue of straight baseline conditions which have multifaceted bearings and impacts on every aspect of the sea. The fluid criteria for delineation of straight baselines enshrined in Article 7 of UNCLOS offers elasticity of interpretations. The vagueness in straight baseline principles emerges in excessive lines having particular impinging on maritime zone regimes being mother of all zones. The impacts of excessive lines are enormous on continental shelf and EEZ which are twilight of coastal sovereign jurisdictions and inclusive international community freedoms. The doctrine of straight baselines took its formal birth from 1951 Anglo-Norwegian case when only bifurcation was between territorial sea and high seas. The judgment elucidated three folded aspects; many dimensions specific to Norwegian coast, other coastal states and international facets in general. Over sixty three years have elapsed since sparking of dispute on the Norwegian coast concerning method of straight baselines that had been smothered with a legal extinguisher. Today majority of states wants to kindle their interests through straight baseline system. In history of international law this seems only decision between the two states which received general recognition of states. At the same time, the system legitimatized by a judgment generated a mushroom growth of controversies between states. Over the years, state practice has exhibited that almost negligible heed has been casted on international aspect of employing straight baselines.
The object of introducing this system of baseline had been to smooth out the delineation process for irregular coasts, to avoid pockets due to complicated patterns in territorial seas and outer limits of EEZ and Continental Shelf of coastal states. The spirit was to use this system of baselines restrictively and sparingly as an exception. Examination of claims by states portray that in practice a large number of states have resorted to straight baseline system as a routine and normal baselines have turned an exception on smooth coastlines too. At occasions straight baselines
277 have been drawn even when these lines did not accrue any benefit to the employing state.
Article 7 of UNCLOS places heavy reliance on two basic pillars which are foundation of straight baseline system. The first test is presence of deep indentation and cut into situation on coast. Alternatively coast should be fringed with islands along with a sub-condition that such fringe should be in coast‘s immediate vicinity. The criteria have both; qualitative and quantitative angles. The candid reality is that extreme intellectual differences prevail on the understanding of deep indentation and cut into. Vagueness persists as to depth and width of the coastal indentation and number of indentations required for coastline to come into the ambit of straight baseline parameters. Endeavours in the UN study suggesting presence of ―several‖ indentations is again undetermined. Ordinary meanings of several are more than two whereas in legal sense several connotes more than one. Similarly it is unclear what does term cut into means as it has been conjoined with deeply indented through ―and‖ and not ―or‖. The over emphasis by adding ‗cut into‘ with indentation criterion certainly imply that indentation should not be a mere curvature but should be deep and wide enough to satisfy condition.
A fringe of islands has no cogent clarity with reference to number, distance and general direction. The fact is that it was neither possible nor practicable for ICJ or still for any other organization to furnish uniform ground rules on straight baselines catering coast of each and every state. Certainty in objective test for fringing islands situation is not available as a readymade solution. Fringing islands condition is not only a quantitative concern but a qualitative relevance as well. Hypothetically, it is possible that a fringe of islands comprising only a few islands masking over 50% coast. Contrarily, a fringe may consist of a number of islands or islets covering a very small portion of coast. Nevertheless, some criteria would be needed to cater the quantitative and qualitative tests for various coastal scenarios.
278 If a coast of state fits in none of the two primary conditions, straight baseline is not the proper system for that state. Interestingly UNCLOS provision does not compel a state to opt for this system of baselines although her coast may perfectly fulfil the criteria. The principles being generic and devoid of any mathematical precision provide elasticity in rules. The uncertain conditions have either been very flexibly interpreted or in some cases ignored in practical terms. The absence of objective test in Article 7 has polarised states between flexible and stringent standards on straight baselines. This emerged into divergent state practice without producing any uniform solution for a standardized objective formula for application. A primary criterion of deep indentation and cut into coast or secondary criterion of coasts fringed with islands in immediate vicinity remains an enigma with absolutely unclear bounds. Minimizing stringent criteria will increase the number of compliant states. It will in turn exert pressure on states with expansive claims as ratio of non-complaint states would reduce. In author‘s opinion the best policy for states in the drawing of straight baselines could be to work on the principle; surrendering by one, gaining by all.
A number of scholars and publicists have been criticizing vagueness of terms used in UNCLOS in general and Article 7 in particular. It is undeniable that ambiguities do exist which are heavy on any precise scale. The catalytic effect of ICJ verdict for pursuing straight baseline system by states necessitated its codification. The same expressions somersaulted from ICJ verdict into TSC which got way into UNCLOS and could not be clarified during the nine years negotiations at UNCLOS-III. The substantive as well as procedural criteria enunciated in Article 7 of UNCLOS is too vague to serve the real objective. It manifests that clarity had been sacrificed to facilitate culmination of UNCLOS and to avoid its frustration in greater interests of states. Doubtlessly unclear criteria on straight baselines is primary cause for foul straight baselines. There are, however, many other factors, some salient of which include; geographical, economic, strategic, political and psychological.
The state practice on the subject can in no way be called uniform to provide general international norms. The two extremes; flexibility in application of straight baseline
279 system leading to it‘s over utilization and rigid view by some states leading to ignorance of rules are quite evident in state practice. The situation demands a well- founded compromise on this clamouring issue. A lot of ink has been spilt on straight baseline issues and would be done in future too. But there seems no other solution except opening the doors of negotiations by states on the issue to soften up strong positions.
Interpretation of a legal document is an instrumental way to clarify ambiguous and vague terms. The study has applied four tools provided in VCLT for interpretation of vague terms in Article 7 of UNCLOS. These mechanisms include; finding of ordinary meaning; object and purpose; preparatory work of UNCLOS and subsequent state practice. The judicial decisions have been taken into account to muster some legal support. Unfortunately, none of these methods of interpretation provide support to elucidate clarity to UNCLOS provision on straight baselines. The ordinary meaning and finding intention of parties to UNCLOS through object and purpose is not workable. The travaux préparatoires is not useful either. The formal preparatory work of UNCLOS is not available like TSC for interpretive help as a novel procedure was followed to achieve success at UNCLOS-III. The political committee instead of legal committee of UN was tasked to accomplish negotiations through consensus rather than voting. A lot of lobbying by different states and informal group of states was done during UNCLOS-III due to their vested interests. The state practice on employment of straight baselines is inconsistent. The principles on application of straight baselines have not acquired the status of customary norm until now. Nonetheless, acquiescence of states on wrong straight baselines through flexible interpretation poses the danger of acquiring some regional or sub regional state practice forming special customary rule of law. State parties very rarely move judicial forums on public international maritime law matters. It is on account of two primary reasons; fear of uncertainty of results and latitude of opting out from compulsory jurisdiction of judicial forums as provided in Article 298 of UNCLOS. The judicial forums‘ have also been reluctant in delivering authoritative interpretations of Article 7 of UNCLOS when even they had the
280 opportunity at disposal. The international courts and tribunals mostly reiterated principles pronounced in Anglo-Norwegian case as codified in Article 7.
The change is law of nature and dynamism is a life line for every law except the grund norms (fundamental norms). There may be different approaches to address weaknesses in straight baseline provisions in Article 7. First; amendments may be incorporated in the article to clarify the ambiguities. The way out for amendment mechanism is contained in Articles 312, 313 and 316 of UNCLOS itself which vests this authority in the state parties. Nevertheless, it needs emphasis that unlike most other treaties UNCLOS is tied with a number of compromises. There is preponderance of thinking that if UNCLOS provisions on straight baselines are opened up for general discussion it would be quite difficult, if not impossible, to strike consensus again. It is rather possible to have more divergent views resulting in more controversies leading to its fragmentation. Many other issues may crop up for discussions. In the backdrop of this potential apprehension the international community may not risk the fragmentation of UNCLOS.
Second; ambiguities and vagueness could not be resolved through negotiations despite marathon sessions in UNCLOS-III, negotiations may be a useless effort. This approach regarding renegotiation for removing ambiguities being useless is not considered correct. Irrespective of the mode of renegotiation, deliberation and negotiation afresh are the only viable solution for uniformity and removing vagueness in straight baseline rules.
Third; international courts and tribunals should interpret the rules to provide ample clarity to criteria in Article 7. The chance of judge made interpretative re-evaluation of terms and phrases in Article 7 in accordance with third approach is remote as decisions of international court and tribunal are binding on parties to dispute without precedent value in terms of Article 59 of the ICJ statute.
Fourth; just wait and see to let the state practice establish for evolving customary norm. This approach may not be a viable option in evolving uniform rules in the
281 light of past deviating state practice. The practice of state is so divergent and inconsistent that it is not likely to produce any customary international law. The sub- regional or regional state practice may strengthen the flexible approach on construction of straight baselines against the spirit of UNCLOS.
Fifth; an agreement should be arrived at under the auspices of UN through some organization under the umbrella of UNCLOS provision on straight baselines. Striking an agreement under some UN Organisation in the furtherance of Article 7 is considered a suitable option.
All these approaches may have their merits and demerits but one thing is certain that with the change in global political dynamics, legal framework of Article 7 needs to keep pace with the changed environment. Weighing all the pros and cons of various approaches discussed in the preceding paragraphs, it is expedient that the efficacy of fifth approach for striking an agreement under some UN organisation in the spirit of Article 7 is considered most viable option. The comity of nations needs to work on consensus like techniques to carve out amicable set of principles. International institutions or special forums may provide best platform for cooperation. Endeavours may be made under the umbrella of Article 7 of UNCLOS for an agreement on the pattern of 1994 Agreement Relating to Implementation of part XI of UNCLOS and UN Fish Stocks Agreement 1995. There are a number of international organizations which may be used for this purpose. These include; UN DOALOS, State Parties to Law of the Sea Convention (SPLOS), FAO, and CLCS as a Launch pad. To achieve objectivity in UNCLOS provision on straight baselines it is paramount to evolve certainty in rules and legal order for the oceans.
The research has analysed straight baseline principles and prospects for the development of uniform rules. Lessons can be learnt from formulation of UNCLOS itself. The strategy of consensus, instead of voting, adopted during UNCLOS-III for the decision making was a hallmark. The mechanism provided in Article 311(3) is of great value due to its quickness and for the opportunity of state parties for deliberations, debates and resolve.
282
UNCLOS with the exception of some weaknesses is a wonderful document whose fragmentation may bring international comity on the brink of disaster by jeopardizing integration of international sea regimes. The principles enshrined in UNCLOS provide guarantee for order at sea. The fragmentation of this instrument may tarnish the maritime fabric and undo the framework created through decades hectic endeavours of international community. The author perceives that UNCLOS is like a beautiful rosary in which beads are the individual states having various shapes, colours and shades whereas common thread through the beads is will of the states. If this thread is once broken or untied, beads would never be able to create this novel rosary again.
In an international situation like controversial straight baselines, negotiation, negotiation and negotiation in the spirit of pacta sunt servanda is the answer. If window of negotiation is closed it results in deadlock which annihilates will of the states to cooperate. Delay in resolving straight baseline disputes is likely to defeat object for which the system was indoctrinated in international maritime law. The long usage of unfounded straight baselines by coastal states may harden their positions from withdrawing or revising such baselines.
Employment of straight baseline system by states in isolation according to their convenient interpretation and criticism by states in isolation would not materialize conciliation. The states mostly do not publish their charts used for delineation of straight baselines or their coordinates in disregard to Article 16 of UNCLOS keeping international community in darkness. Developing a common understanding based on institutionalized thought process is a prerequisite for playing role in international relations for positive outcome. Efforts at regional level relating to straight baseline may not fulfil the purpose of an international uniform mechanism under the provision of a universal convention. Consolidated and concerted global strategy is necessitated for uniform application of straight baseline principles.
283 Impact of straight baselines on the regimes of various maritime zones; starting from internal waters on landward side of baselines till extended continental shelf is no farce. The impacts are of wide variety and likely to loom on account of more awareness about sea, acquisition of scientific data, technical knowledge and depletion of land resources. The competition between exclusive coastal state claims and international community inclusive rights due to straight baselines may emerge into severe conflicts. The unfounded straight baselines by states may appropriate large expanse of water and enhance economic control and jurisdictions in the sea. A coastal state may declare some area as internal water or territorial sea based on their straight baseline claim whereas other states may treat this area of sea as EEZ, continental shelf or even high seas. The tussle, between internationalizing EEZ for more high seas freedoms by international community and territorializing EEZ for more sovereignty like jurisdictions tempts the coastal states for excessive baseline claims, may deepen further.
The thesis concludes that parameters provided in Article 7 of UNCLOS are unclear, vague, non-objective and imprecise both; substantively and procedurally. The change in the regime of zone may change whole connotation about the rights and obligations amongst the coastal states, flag states or other states with great impacts. The abus de droit (abuse of right) of straight baseline criteria needs a curb. The most preferred way-out is a compromise between de lege lata (what law is) and de lege ferenda (what law ought to be) through agreement of states for uniform straight baseline rules. The repercussions, inter alia, pertain to economic, legal, diplomatic, jurisdictional, enforcement and administrative areas. The particular impacts may be on the activities like; navigation, over-flight, exploration, exploitation of living and non-living resources, laying submarine cables and pipelines, marine scientific research, military activities and law enforcement in different maritime zones.
Recommendations
The research was multifaceted from various aspects of straight baselines. The primary focus, however, remained the fluid criteria provided in UNCLOS and a
284 variety of impacts of foul straight baselines with specificity on continental shelf and EEZ regimes. The terms and phrases used in Article 7 of UNCLOS providing parameters for straight baselines were deeply probed from interpretation point of view. During research ambiguity and vagueness was determined as key cause for flexible applicability of this system of baselines. Nevertheless, there are many other potential factors tempting the coastal states for employing foul straight baselines for excessive maritime claims. Analysis of issue reveals that vested interests of the states are playing dominant role in controversies over straight baselines. Following measures may lead to uniformity of rules on the subject for peaceful resolution and amity amongst states;
1. Continuous negotiations by states are essence for amicable success. Isolated state practice on drawing of straight baselines and isolated criticism may not serve the purpose of creating cooperative environment for resolution of the problem.
2. Concerted international level efforts are must for international uniform rules concerning straight baselines to avoid maturing of regional customary norms or sub-regional special customs.
3. Holding of meetings of experts from ILC, IHO and experts from different countries representing every region of the world for preparing grounds for diplomatic and state accredited delegates‘ negotiations. It will help in mutual understanding of differing interpretations on straight baselines terms and phrases.
4. Diplomats may be engaged in these negotiations at secondary stage as they are generally more patient and considerate to foster consensus. On framework provided by the technical experts, states may enter into a uniform and deliberated outcome thereby meeting ends of flexibility and rigidity in employment of straight baseline rules.
285 5. Different broad situations on coasts may be taken into account for outlining rules accommodating them in various categories of conditions.
6. The task may be more appropriately assigned to UN DOALOS being a technical Organisation on law of the sea. To capitalize far reaching fruits, creation of a commission for straight baselines on the pattern of CLCS may be considered under the auspices of DOALOS. DOALOS being an appropriate forum may act as Launch pad for solution of the problem.
7. The agreement on straight baselines may be modelled on 1994 Implementation Agreement relating to Area, 1995 Agreement concerning international fisheries or agreement in line with ‗UNESCO Convention on the Protection of the Underwater Cultural Heritage 1972‘.
8. Trust deficit enhances gulf between the states. Focused attention is needed in the form of Confidence Building Measures (CBM) to repose confidence amongst the developing, underdeveloped and militarily weak nations on their security apprehensions. It will persuade the coastal states to review their baselines and consequently rationalize their excessive claims.
9. Compromise between rigid interpretations and flexible application of straight baseline principles may offer a win-win situation for either side. Exhibiting some flexibility on the cost of appropriation little expense of sea is better than gross violation and miscarriage of whole system and objectivity of straight baseline system. It would minimize the hostile behaviour of states as in certain circumstances these issues may converge into potential military conflict.
10. Publicity of charts or geographical coordinates of the straight baselines delineated by states need to be implemented by the UN through a consensus resolution in the spirit of Article 16 and sixteen other
286 provisions of UNCLOS. This step will remove uncertainties and would bring clarity on the construction of straight baselines and in turn limits of maritime zones.
The straight baselines is a difficult area of international maritime research as well as a volatile issue for maintaining peace and stability on international arena. The analysis distils following facets of straight baselines for further research;
1. International aspect of delineation of straight baselines drawn unilaterally by the coastal states to create a balance.
2. Efficacy of modern techniques like Global Positioning System (GPS) for proper positioning of straight baseline base-points to minimise conflicts.
3. Effectuating the role of ‗pacta sunt servanda‘ and ‗due regard‘ principles for reducing controversies over straight baseline constructions.
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299 United States, Limits in the Seas Numbers 122, Thailand Straight Baselines Claims, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 8 September 2000. United States, Limits in the Seas Numbers 124, Straight Baselines Claims: Honduras, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 28 June 2001. United States, Limits in the Seas Numbers 13, Straight Baselines: Faeroes, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 12 March 1970. United States, Limits in the Seas Numbers 14, Straight Baselines: Burma, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 14 March 1970. United States, Limits in the Seas Numbers 15, Straight Baselines: Madagascar, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 16 March 1970. United States, Limits in the Seas Numbers 19, Straight Baselines: Denmark, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 21 December 1978. United States, Limits in the Seas Numbers 20, Straight Baselines: Saudi Arabia, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 8 June 1970. United States, Limits in the Seas Numbers 21, Straight Baselines: Venezuela, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 11 June 1970. United States, Limits in the Seas Numbers 22, Straight Baselines: United Arab Republic, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 22 June 1970. United States, Limits in the Seas Numbers 23, Straight Baselines: United Kingdom, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 26 June 1970. United States, Limits in the Seas Numbers 25, Continental Shelf Boundary: Iran- Qatar, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 9 July 1970. United States, Limits in the Seas Numbers 26, Territorial Sea Boundary: Denmark- Sweden, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 16 July June 1970. United States, Limits in the Seas Numbers 27, Straight Baselines: Portugal, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 9 November 1970. United States, Limits in the Seas Numbers 28, Straight Baselines: Angola, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 10 November 1970. United States, Limits in the Seas Numbers 29, Straight Baselines: Mozambique, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 12 November 1970.
300 United States, Limits in the Seas Numbers 3, Straight Baselines: Ireland, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 23 January 1970 United States, Limits in the Seas Numbers 30, Straight Baselines: Portuguese Guinea, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 13 November 1970. United States, Limits in the Seas Numbers 31, Straight Baselines: Thailand, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 24 March 1971. United States, Limits in the Seas Numbers 32, Straight Baselines: Turkey, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 25 March 1971. United States, Limits in the Seas Numbers 33, Straight Baselines: Philippines, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 23 March 1973. United States, Limits in the Seas Numbers 34, Straight Baselines: Iceland, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 1 July 1974. United States, Limits in the Seas Numbers 35, Straight Baselines: Indonesia, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 20 July 1971. United States, Limits in the Seas Numbers 36, National Claims to Maritime Jurisdiction, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 25 May 2000. United States, Limits in the Seas Numbers 37, Straight Baselines: France, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 29 February 1972. United States, Limits in the Seas Numbers 38, Straight Baselines: Germany, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 11 January 1971. United States, Limits in the Seas Numbers 39, Straight Baselines: Svalbard, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 6 March 1972. United States, Limits in the Seas Numbers 4, Straight Baselines: Mexico, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 24 January 1970. United States, Limits in the Seas Numbers 40, Straight Baselines: Guinea, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 7 March 1972. United States, Limits in the Seas Numbers 41, Straight Baselines: Mauritius, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 7 March 1972. United States, Limits in the Seas Numbers 42, Straight Baselines: Ecuador, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 23 May 1975.
301 United States, Limits in the Seas Numbers 43, Straight Baselines: People‘s Republic of China, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 1 July 1978. United States, Limits in the Seas Numbers 44, Straight Baselines: Argentina, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 10 September 1972. United States, Limits in the Seas Numbers 47, Straight Baselines: Sweden, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 14 September 1972. United States, Limits in the Seas Numbers 48, Straight Baselines: Finland, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 15 September 1972. United States, Limits in the Seas Numbers 5, Straight Baselines: Dominican Republic, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 25 January 1970. United States, Limits in the Seas Numbers 51, Straight Baselines: Haiti, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 25 May 1973. United States, Limits in the Seas Numbers 52, Straight Baselines: East Germany, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 9 October 1973. United States, Limits in the Seas Numbers 53, Straight Baselines: Syria, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 10 October 1973. United States, Limits in the Seas Numbers 54, Straight Baselines: Senegal, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 11 October 1973. United States, Limits in the Seas Numbers 6, Straight Baselines: Yugoslavia, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 6 February 1970. United States, Limits in the Seas Numbers 61, Straight Baselines: Oman (Hypothetical), Washington D.C.: the Geographer, Bureau of Intelligence and Research, 4 June 1975. United States, Limits in the Seas Numbers 7, Straight Baselines: Albania, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 16 February 1970. United States, Limits in the Seas Numbers 76, Straight Baselines: Cuba, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 28 October 1977. United States, Limits in the Seas Numbers 77, Maritime Boundaries: India-Sri Lanka, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 16 February 1978. United States, Limits in the Seas Numbers 8, Straight Baselines: Mauritania, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 18 February 1970. United States, Limits in the Seas Numbers 80, Straight Baselines: Chile, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 15 November 1978.
302 United States, Limits in the Seas Numbers 82, Straight Baselines: Republic of Korea, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 22 January 1979. United States, Limits in the Seas Numbers 99, Straight Baselines: Vietnam, Washington D.C.: the Geographer, Bureau of Intelligence and Research, 12 December 1983. US Geological Survey Research 1968, Geological Survey Professional Paper 600-A, US: Washington, 1968. Van, Caenegem R. C., An Historical Introduction to Private Law, New York: Cambridge University Press, 1996. Vidas, Davor and Willy Ostreng., Eds., Order for the Oceans at the Turn of the Century, Netherland: Martinus Nijhoff Publishers, 1999. Villiger, Mark E., Commentary on the 1969 Vienna Convention on the Law of Treaties, Leiden / Boston: Martinus Nijhoff Publishers, 2009. Walker, George K., Definitions for the Law of the Sea, Leiden / Boston: Martinus Nijhoff Publishers, 2012. Walker, Pam and Elaine Wood, The Continental Shelf (Life in the Sea), New York: Facts On File, Inc., 2005. Welwod, William, An Abridgement of all Sea-Lawes, London: Humfrey Lownes, 1613. Wheaton, Henry, Elements of International Law, Boston: Little, Brown and Company, 1866. Wilson, George Grafton Ed., International Law Situations, Washington: US Government Printing Office, 1934. Yen, Trinh Hai, The Interpretation of Investment Treaties, Netherlands: Martinus Nijhoff Publishers, 2014.
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Lectures / Presentations / Workshops / Papers: Bateman Sam and Schofield Clive, ―State Practice Regarding Straight Baselines in East Asia – Legal, Technical and Political Issues in a Changing Environment‖ Presented at Difficulties in Implementing the Provisions of UNCLOS, organized by the Advisory Board on the Law of the Sea (ABLOS), in Monaco on 16 –17 October 2008. Jacovides, Andrew, ―Regime of Islands‖, (lecture, Rhodes Academy of Oceans Law and Policy, July 5, 2013). Presentation given by ICPC, ―Submarine Cable Network Security‖ given at the Submarine Cable Protection Information Sharing Workshop, Singapore on 13 April 2009. Protective Security Division, Characteristics and Common Vulnerabilities Infrastructure Category: Cable Landing Stations, Vol-I, (US Department of Homeland Security, 2004). Tønnesson, Stein, "Resolving the South China Sea Conflict." Paper presented at the Workshop on the South China Sea Conflict, Centre for Development and the Environment, University of Oslo, 24-26 April 1999. Tsaltas, Grigoris, Bourtzis Tilemachos and Rodotheatos Gerasimos, ‗Artificial Islands and Structures as a Means of Safeguarding State Sovereignty against Sea Level Rise. A Law of the Sea Perspective‘ (Paper presented to the 6th Advisory Board on the Law of the Seas (BLOS) Conference, Monaco 25-27 October 2010) (unpublished).
News Papers / Press Releases: Chinese Law‘ Xinhua News Agency (10 March 2009) (accessed 17th August 2014).
305 ITLOS Press Release of 27 March 2002, ITLOS/Press 64. US Department of Defense, ‗DoD News Briefing with Geoff Morrell from the Pentagon‘-(11 March 2009). Time Magazine, 19 January 1968.
306 APPENDIX-I
LIST OF CASES REFERRED / DISCUSSED
"Corfu Channel case, Judgment of April 9th, 1949; ICJ Reports 1949, P. 4.
(1927) SS Lotus Case PCIJ Series A, No. 10, 16.
1984 Costa Rica Naturalization Provisions Advisory Opinion, ILR 79 (1989) 292.
Aegean Sea Continental Shelf Case (Greece v Turkey), ICJ Report 1978, p. 3.
Application of the Convention on the Prevention and Punishment of Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, p. 43.
Aramco v. Saudi Arabia (1958), 27 ILR 117 61 at p.212.
Arbitral Award Eritrea-Ethiopia Boundary Commission Delimitation of the Border Between Eritrea and Ethiopia (Eritrea v Ethiopia), 2002, 25 RIAA 83, 110.
Arbitral Award on Pollution of the Rhine, (The Netherlands v. France) (2004).
Award between the United States and the United Kingdom relating to the rights of jurisdiction of United States in the Bering‘s sea and the preservation of Fur seals, 1893 RIAA, Vol- XXVIII, pp. 263-276.
Award by the Arbitral Tribunal on the Maritime Delimitation between Guinea and Guinea- Bissau, 1985 RIAA, Vol-XIX, pp. 148-196.
Award in the Arbitration regarding the Iron Rhine (―Ijzeren Rijn‖) Railway between the Kingdom of Belgium and the Kingdom of the Netherlands, decision of 24 May 2005.
Award of the Alaska Boundary Tribunal (Great Britain v USA) (1903) XV RIAA 481 (Alaska Boundary Award).
Brazilian Loans Case (1929) PCIJ, Series A. No. 21.
Case Concerning Kasikili / Sedudu Island (Botswana v Namibia), ICJ Reports 1999, p. 1045 (Kasikili/Sedudu Island Case).
Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Merits), ICJ Reports 2001, p. 40.
Case Concerning Right of Passage over Indian Territory (Portugal v India) (Merits), ICJ Report 1960 p. 6 (Rights of Passage Case).
1 Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia / Malaysia) (Merits), ICJ Reports 2002, p. 625.
Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria), ICJ Rep 2002, p. 303 (Cameroon v Nigeria).
Case Concerning the Legal Status of Eastern Greenland (1933) PCIJ Reports, Series A/B, No. 53 (Eastern Greenland Case).
Case Concerning the Territorial Dispute (Libyan Arab Jamahiriya / Chad), ICJ Reports 1994, p. 6 (Territorial Dispute Case).
Case No. 5, (Panama v. France) ITLOS 2000.
Case Relating to the Territorial Jurisdiction of the International Commission of the River Oder (1929) PCIJ, Ser. A, No. 23 (River Oder Case).
Colombia-Venezuela Arbitration (1922) 1 RIAA 223.
Competence of Assembly Regarding Admission to the United Nations, Advisory Opinion, ICJ Reports 1950, p. 4.
Conditions of Admission of a State to Membership in the United Nations case, ICJ Reports 1948, p. 57.
Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, ICJ Reports 1982, p. 18.
Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Island and the French Republic (1977) 18 RIAA 3 (Anglo-French Continental Shelf Case).
Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, ICJ Reports 1984, p. 246.
Dispute between Argentina and Chile concerning the Beagle Channel, Reports of International Arbitral Awards of 18 February 1977, Vol-XXI, (United Nations: 2006), para 142 at 167- 168.
Diversion of Water from the River Meuse case (Netherlands v Belgium) (1937) PCIJ, Series A/B, No. 70.
Employment of Women during the Night Case, PCIJ 1932, Series A/B, No. 50.
Fisheries Case (United Kingdom v Norway), ICJ Reports 1951, p. 116 (Anglo-Norwegian Fisheries Case).
2
Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgement, ICJ Reports 1997, p. 7.
International Status of South-West Africa (Advisory Opinion), ICJ Reports 1950, p 128.
Interpretation of the air transport services agreement between the United States of America and France, (USA v. France), Award of 22 December 1963, UNRIAA, Vol-XVI, pp. 5-74.
ITLOS, Seabed Disputes Chamber, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion), 1 February 2011.
Jurisdictional Immunities of the State (Germany v. Italy : Greece intervening), Judgment, ICJ Reports 2012, p. 99.
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p. 16 (South West Africa Case).
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), Advisory Opinion, ICJ Reports 1971, p. 16.
Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, ICJ Reports 2009, p. 61.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment. ICJ Reports 1986, p. 14.
North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), ICJ Reports 1969, p. 3 (North Sea Continental Shelf Cases).
Nuclear Tests, (New Zealand v. France), Judgment, ICJ Reports 1974, p. 457.
PCIJ Advisory Opinion No. 8, Question of Jaworzina (Polish–Czechoslovakian Frontier) PCIJ Series B, No 8 (1923), 37
Philippine Supreme Court Decision; G.R. Case No. 187167, August 16, 2011.
Reservation to the Convention on the Prevention and Punishment of Genocide, (Advisory Opinion), ICJ Reports 1951, p. 15.
Rights of Nationals of the United States of America in Morocco (France v United States), ICJ Reports 1952, p. 176.
Soult v. Africaine (1804) 22 Fed.Case page 805.
3
South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of 21 December 1962: ICJ Reports 1962, p. 319
Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) 2007.
The Alaska Boundary Case (Great Britain v. United States), UN Report Vol XV (1903), pp. 481- 540.
The M/V "SAIGA" ITLOS Case No. 1.
The Minority Opinion in Iran-US Claims Arbitration (1981), ILR 62 (1982).
The Schooner Exchange V. McFaddon & Others, 11 U.S. 116 (1812).
United States v California, 381 U.S. 139 (1965), 168.
United States v. Alaska, 117 S.Ct. 1888 (1997), U.S. Supreme Court, June 19, 1997.
Western Sahara Advisory Opinion, ICJ Report 1975, p. 12.
4 APPENDIX-II
GLOSSARY OF TERMS AND PHRASES
1
2
3
4
5
6 APPENDIX-III
7 APPENDIX-IV
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
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20
21
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24
25
26
27
28
29 30 APPENDIX-V
MARITIME ZONES AND IMPACT ON THEM DUE TO EXCESSIVE STRAIGHT BASELINES
1
1